This case was last updated from Los Angeles County Superior Courts on 10/27/2018 at 22:09:24 (UTC).

CYNTHIA LOPEZ VS. KENNETH LOPEZ

Case Summary

On 07/20/2017 CYNTHIA LOPEZ filed a Personal Injury - Assault/Battery/Defamation lawsuit against KENNETH LOPEZ. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are RICHARD E. RICO and ELIZABETH ALLEN WHITE. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9038

  • Filing Date:

    07/20/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Assault/Battery/Defamation

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

RICHARD E. RICO

ELIZABETH ALLEN WHITE

 

Party Details

Plaintiff

LOPEZ CYNTHIA

Defendants

LOS ANGELES COUNTY ADULT PROTECTIVE

LOPEZ KENNETH

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

DANIEL BOONE

LAW OFFICES OF JUSTIN ROMIG

BOONE DANIEL

Defendant and Respondent Attorneys

LAW OFFICES OF GEORGE J. PAUKERT

ALEEN L. LANGTON DEPUTY COUNTY COUNSEL

LAW OFFICES OF DILIP VITHLANI APC

 

Court Documents

PLAINTIFF CYNTHIA LOPEZ' STATUS CONFERENCE STATEMENT

8/15/2018: PLAINTIFF CYNTHIA LOPEZ' STATUS CONFERENCE STATEMENT

Minute Order

8/21/2018: Minute Order

NOTICE OF APPEAL

1/8/2018: NOTICE OF APPEAL

NOTICE OF FILING OF NOTICE OF APPEAL

1/9/2018: NOTICE OF FILING OF NOTICE OF APPEAL

RESPONDENT'S NOTICE ELECTING TO USE AN APPENDIX (UNLIMITED CIVIL CASE)

1/18/2018: RESPONDENT'S NOTICE ELECTING TO USE AN APPENDIX (UNLIMITED CIVIL CASE)

Minute Order

1/22/2018: Minute Order

APPELLANT?S NOTICE DESIGNATING RECORD ON APPEAL (UNLIMITED CIVIL CASE)

1/29/2018: APPELLANT?S NOTICE DESIGNATING RECORD ON APPEAL (UNLIMITED CIVIL CASE)

Minute Order

2/21/2018: Minute Order

NOTICE OF ENTRY OF JUDGMENT OR ORDER

4/16/2018: NOTICE OF ENTRY OF JUDGMENT OR ORDER

Minute Order

6/5/2018: Minute Order

ORDER GRANTING PLAINTIFF'S EX PARTE APPLICATION TO VACATE FEBRUARY 21,2018 MINUTE ORDER OF DISMISSAL AND REINSTATE CASE

6/5/2018: ORDER GRANTING PLAINTIFF'S EX PARTE APPLICATION TO VACATE FEBRUARY 21,2018 MINUTE ORDER OF DISMISSAL AND REINSTATE CASE

PROOF OF SERVICE OF: PLAINTIFF CYNTHIA LOPEZ' NOTICE OF EX PARTE APPLICATION AND APPLICATION FOR AN ORDER VACATING FEBRUARY 21, 2018 MINUTE ORDER OF DISMISSAL AND REINSTATING CASE; MEMORANDUM OF POINT

6/5/2018: PROOF OF SERVICE OF: PLAINTIFF CYNTHIA LOPEZ' NOTICE OF EX PARTE APPLICATION AND APPLICATION FOR AN ORDER VACATING FEBRUARY 21, 2018 MINUTE ORDER OF DISMISSAL AND REINSTATING CASE; MEMORANDUM OF POINT

PLAINTIFF CYNTHIA LOPEZ' NOTICE OF EX PARTE APPLICATION AND APPLICATION FOR AN ORDER VACATING FEBRUARY 21, 2018 MINUTE ORDER OF DISMISSAL AND REINSTATING CASE; MEMORANDUM OF POINTS AND AUTHORITIES; DE

6/5/2018: PLAINTIFF CYNTHIA LOPEZ' NOTICE OF EX PARTE APPLICATION AND APPLICATION FOR AN ORDER VACATING FEBRUARY 21, 2018 MINUTE ORDER OF DISMISSAL AND REINSTATING CASE; MEMORANDUM OF POINTS AND AUTHORITIES; DE

CLERK'S CERTIFICATION OF RECORD ON APPEAL

6/8/2018: CLERK'S CERTIFICATION OF RECORD ON APPEAL

NOTICE OF STATUS CONFERENCE AND ORDER

6/27/2018: NOTICE OF STATUS CONFERENCE AND ORDER

NOTICE OF STATUS CONFERENCE AND ORDER

6/27/2018: NOTICE OF STATUS CONFERENCE AND ORDER

PROOF OF SERVICE OF: NOTICE OF STATUS CONFERENCE AND ORDER

7/23/2018: PROOF OF SERVICE OF: NOTICE OF STATUS CONFERENCE AND ORDER

PLAINTIFF CYNTHIA LOPEZ' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION TO STRIKE MEMORANDUM OF COSTS, OR IN THE ALTERNATIVE TO TAX COSTS; ETC.

5/2/2017: PLAINTIFF CYNTHIA LOPEZ' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION TO STRIKE MEMORANDUM OF COSTS, OR IN THE ALTERNATIVE TO TAX COSTS; ETC.

144 More Documents Available

 

Docket Entries

  • 08/21/2018
  • Docketat 08:30 AM in Department 17, Richard E. Rico, Presiding; Status Conference (Status Conference; Off Calendar) -

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  • 08/21/2018
  • DocketMinute Order

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  • 08/15/2018
  • DocketPLAINTIFF CYNTHIA LOPEZ' STATUS CONFERENCE STATEMENT

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  • 07/23/2018
  • DocketProof of Service (not Summons and Complaint); Filed by CYNTHIA LOPEZ (Plaintiff)

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  • 07/23/2018
  • DocketPROOF OF SERVICE OF: NOTICE OF STATUS CONFERENCE AND ORDER

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  • 06/27/2018
  • DocketNotice of Status Conference filed; Filed by Clerk

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  • 06/27/2018
  • DocketNOTICE OF STATUS CONFERENCE AND ORDER

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  • 06/27/2018
  • DocketNOTICE OF STATUS CONFERENCE AND ORDER

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  • 06/08/2018
  • DocketCLERK'S CERTIFICATION OF RECORD ON APPEAL

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  • 06/05/2018
  • Docketat 08:30 AM in Department 17, Richard E. Rico, Presiding; Ex-Parte Proceedings (Exparte proceeding; Matter continued) -

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243 More Docket Entries
  • 07/20/2017
  • DocketPLAINTIFF CYNTHIA LOPEZ' REQUEST FOR JUDICIAL NOTICE AND DECLARATION OF JUSTIN ROMIG IN SUPPORT OF CYNTHIA LOPEZ' MEMORANDUM OF POINTS AND AUTHORITIES IN RESPONSE TO COURT'S ORDER TO SHOW CAUSE RE JUDGMENTS ON THE PLEADINGS

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  • 07/20/2017
  • DocketPLAINTIFF'S REPLY DECLARATION REGARJ)[NG PROPOSED ORDER ON PLAINTIFF S MOTION TO COMPEL FUTHER RESPONSES FROM DEFENDANT

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  • 07/20/2017
  • DocketCIVIL DEPOSIT

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  • 07/20/2017
  • DocketDEFENDANT'S JOINT STATEMENT RE DISCOVERY ISSUES, DECLARATIONS OF KENNETH LOPEZ, JESSE LOPEZ, RACHEL LOPEZ

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  • 07/20/2017
  • DocketNOTICE OF CHANGE OF ADDRESS FOR DEFENDANT' COUNSEL

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  • 07/20/2017
  • DocketNOTICE OF CASE ASSIGNMENT

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  • 07/20/2017
  • DocketDECLARATION OF KENNETH LOPEZ IN OPPOSITION TO EX PARTE APPLICATIONS FOR CONTEMPT/SANTIONS ORDER RE; ORDER ON MOTION TO COMPEL FURTHER RESPONSES

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  • 05/05/2017
  • DocketPLAINTIFF'S NOTICE OF MOTION AND MOTION FOR AN ORDER COMPELLING ADULT PROTECTIVE SERVICES AND, RUBEN CAMPA TO COMPLY WITH SUBPOEANAS FOR PRODUCTION OF BUSINESS RECORDS AND APPEARANCE AT DEPOSITION; ETC.

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  • 05/05/2017
  • DocketPLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION FOR AN ORDER COMPELLING ADULT PROTECTIVE SERVICES AND RUBEN CAMPA TO COMPLY WITH SUBPOEANAS FOR PRODUCTION OF BUSINESS RECORDS AND APPEARANCE AT DEPOSITION

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  • 05/02/2017
  • DocketPLAINTIFF CYNTHIA LOPEZ' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION TO STRIKE MEMORANDUM OF COSTS, OR IN THE ALTERNATIVE TO TAX COSTS; ETC.

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Tentative Rulings

b'

Case Number: ****9038 Hearing Date: December 1, 2021 Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

CYNTHIA LOPEZ

vs.

KENNETH LOPEZ

Case No.: BC699038

Hearing Date: December 1, 2021

Plaintiff’s motion to compel further is DENIED IN PART, GRANTED IN PART. Defendant is ordered to answer questions consistent with this ruling. Plaintiff’s motion is denied in all other respects.

On 11/4/2015, Plaintiff Cynthia Lopez filed suit against Kenneth Lopez. Plaintiff’s first amended complaint (FAC) alleges causes of action for: (1) defamation-libel; (2) defamation-slander; (3) intentional infliction of emotional distress; (4) negligent infliction of emotional distress; (5) malicious prosecution; (6) abuse of process; and (7) injunctive relief.

An IDC was conducted on 8/12/2021.

Now, Plaintiff moves to compel further responses to deposition questions from Defendant.

Discussion

Plaintiff seeks to compel Defendant to provide additional responses to deposition questions, and seeks issue and monetary sanctions as a result of his failure.

At the IDC, Defendant’s counsel agreed to produce his client for a follow-up deposition. Moreover, at the IDC, the Court agreed that Defendant’s objections were appropriate with respect to Defendant’s income, Defendant’s attorney-client communications with prior counsel, and going through the prior deposition transcript to confirm answers.

Given the conclusion that certain objections were appropriate, the Court declines to award either issue or monetary sanctions at this time.

However, the Court reiterates its conclusion that Plaintiff may ask questions relating to losses Defendant suffered regarding his previously dismissed cross-complaint pertaining to Plaintiff’s malicious prosecution cause of action. Plaintiff may also inquire about the facts which supported that same cause of action.

Based on the foregoing, Plaintiff’s motion to compel further is denied in part, granted in part. Defendant is ordered to answer questions consistent with this ruling. Plaintiff’s motion is denied in all other respects.

It is so ordered.

Dated: November , 2021

Hon. Jon R. Takasugi Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org. 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 all parties to a motion submit, the court will adopt this tentative as the final order. 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.

Due to Covid-19, the court is strongly discouraging in-person appearances. Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk. The court encourages the parties wishing to argue to appear via L.A. Court Connect. For more information, please contact the court clerk at (213) 633-0517. Your understanding during these difficult times is appreciated.

'


b'

Case Number: ****9038 Hearing Date: September 16, 2021 Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

CYNTHIA LOPEZ

vs.

KENNETH LOPEZ

Case No.: BC699038

Hearing Date: September 16, 2021

Defendants’ motion to disqualify Mr. Boone as counsel is GRANTED.

On 11/4/2015, Plaintiff Cynthia Lopez filed suit against Kenneth Lopez. Plaintiff’s first amended complaint (FAC) alleges causes of action for: (1) defamation-libel; (2) defamation-slander; (3) intentional infliction of emotional distress; (4) negligent infliction of emotional distress; (5) malicious prosecution; (6) abuse of process; and (7) injunctive relief.

Now, Defendant Kenneth Lopez (Defendant) moves to disqualify Mr. Daniel Boone, Esq. (Mr. Boone) from representing Plaintiff.

Legal Standard

“A judge’s authority to disqualify an attorney has its origins in the inherent power of every court in the furtherance of justice to control the conduct of ministerial officers and other persons in pending judicial proceedings.” ;(Neal v. Health Net, Inc. ;(2002) 100 Cal.App.4th 831, 840; ;see also ;Code Civ. Proc., ; 128, subd. (a)(5) [“Every court shall have the power to . . . control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto”].) “The power is frequently exercised on a showing that disqualification is required under professional standards governing avoidance of conflicts of interest or potential adverse use of confidential information.” ;(Responsible Citizens v. Superior Court ;(1993) 16 Cal.App.4th 1717, 1723-1724.)

“Motions to disqualify counsel present competing policy considerations. On the one hand, a court must not hesitate to ;disqualify an attorney when it is satisfactorily established that he or she wrongfully acquired an unfair advantage that undermines the integrity of the judicial process and will have a ;continuing effect on the proceedings before the court. [Citations.] On the other hand, it must be kept in mind that disqualification usually imposes a substantial hardship on the disqualified attorney’s innocent client, who must bear the monetary and other costs of finding a replacement. A client deprived of the attorney of his [or her] choice suffers a particularly heavy penalty where ... his [or her] attorney is highly skilled in the relevant area of the law.” ;(Gregori v. Bank of America (1989) 207 Cal.App.3d 291, 300.) “The paramount concern must be to preserve public trust in the scrupulous administration of justice and the integrity of the bar. The important right to counsel of one’s choice must yield to ethical considerations that affect the fundamental principles of our judicial process.” ;(People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145.) Generally, the disqualification of an attorney vicariously disqualifies his or her firm. ;(William H. Raley Co. v. Superior Court (1983) ;149 Cal.App.3d 1042, 1048–1049.)

Factual Background

This case arises out of allegations that Defendant knowingly filed a false report with Adult Protective Services accusing Plaintiff of abusing their elderly parents.

Discussion

Defendant argues that Mr. Boone should be disqualified from serving as Plaintiff’s counsel because he is her husband and intends to testify at trial on Plaintiff’s behalf. The Court was recently shocked to learn Plaintiff and Plaintiff’s counsel in this family dispute matter were married with the possibility of Plaintiff’s counsel reaping personal financial gain in any judgment awarded to his wife.

In opposition, Plaintiff argues that he has obtained informed written consent from Plaintiff to both represent her and appear as a witness, and thus does not qualify for disqualification.

The advocate-witness rule prohibits “an attorney from acting both as an advocate and a witness in the same proceeding.” (Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1208.) ABA Model Rules rule 3.7, as amended in 2007, provides in relevant part:

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:

(1) the testimony relates to an uncontested issue;

(2) the testimony relates to the nature and value of legal services rendered in the case; or

(3) disqualification of the lawyer would work substantial hardship on the client.

(Kennedy, supra, 201 Cal.App.4th at p. 1209, citing ABA Model Rules rule 3.7.)

While Plaintiff is correct that California has not adopted the ABA Model Rules, California’s Rules of Professional Conduct rule 1-100 expressly state that “The prohibition of certain conduct in these rules is not exclusive… Ethics opinions and rules and standards promulgated by other jurisdictions and bar associations may also be considered.”

Moreover in Kennedy, the Court noted that it perceived “no California-based policy reason not to apply rule 3.7 of the ABA Model Rules to this Case,” given that[d]ecades ago, the California Supreme Court firmly embraced the ethical prohibition against an attorney taking on the dual roles of advocate and witness: ‘An attorney who attempts to be both advocate and witness impairs his credibility as witness and diminishes his effectiveness as advocate.’ ” (Kennedy, supra, 201 Cal.App.4th at p. 1210.)

Accordingly, Courts can, and have, considered the advocate-witness rule and ABA Model Rules rule 3.7 in its evaluation of motions to disqualify.

Here, it is unclear what precise testimony Mr. Boone intends to provide. However, Mr. Boone does not argue that his testimony will relate to the nature and value of his legal services. Instead, it appears that Mr. Boone intends to provide substantive testimony concerning the underlying family dispute on behalf of Plaintiff, who his wife.

The primary motivation for the witness-advocate rule is that “The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively.” (Kennedy, supra, 201 Cal.App.4th at p. 1209.)

In this case, Mr. Boone would not just be expected to present objective testimony for a client who he is also advocating for, but would be expected to present objective testimony for his wife in a highly contested family matter while also advocating for her as her attorney. This dual role clearly impairs his credibility as a witness and diminishes his effectiveness as an advocate. (Kennedy, supra, 201 Cal.App.4th at p. 1210.)

The Court agrees that the grounds for Mr. Boone’s disqualification as Plaintiff’s counsel exist here. Because Plaintiff already associated with co-counsel in May 2021 who will be the trial attorney when this case is tried. It was the health concerns involving this trial counsel that established good cause to continue the case. The Court is persuaded that no prejudice or substantial hardship will result to Plaintiff as a result of this disqualification.

Based on the foregoing, Defendants’ motion to disqualify Mr. Boone as counsel is granted.

It is so ordered.

Dated: September , 2021

Hon. Jon R. Takasugi Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org. 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 all parties to a motion submit, the court will adopt this tentative as the final order. 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.

Due to Covid-19, the court is strongly discouraging in-person appearances. Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk. The court encourages the parties wishing to argue to appear via L.A. Court Connect. For more information, please contact the court clerk at (213) 633-0517. Your understanding during these difficult times is appreciated.

'


Case Number: ****9038    Hearing Date: May 4, 2021    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

CYNTHIA LOPEZ

vs.

KENNETH LOPEZ

Case No.: BC699038

Hearing Date: May 4, 2021

Plaintiff’s motion to compel the deposition of George Paukert is DENIED.

On 11/4/2015, Plaintiff Cynthia Lopez filed suit against Kenneth Lopez. Plaintiff’s first amended complaint (FAC) alleges causes of action for: (1) defamation-libel; (2) defamation-slander; (3) intentional infliction of emotional distress; (4) negligent infliction of emotional distress; (5) malicious prosecution; (6) abuse of process; and (7) injunctive relief.

Now, Plaintiff moves to compel the deposition of Defendant’s former counsel George Paukert.

Factual Background

This case arises out of allegations that Defendant knowingly filed a false report with Adult Protective Services accusing Plaintiff of abusing their elderly parents.

Discussion

Plaintiff seeks to depose of Defendant’s former counsel George Paukert. Initially, Plaintiff argue that this deposition was necessary given that Defendant asserted an advice of counsel defense.

However, at an 4/6/2021 IDC hearing, Defendant indicated that he intended to withdraw his advice of counsel defense. Indeed, on 4/7/2021, Defendant filed a stipulation indicating that he had withdrawn his seventh and ninth affirmative defenses of advice of counsel.

Now, Plaintiff argues that it is necessary to depose Mr. Paukert because: “Without a deposition, we do not know (for example): (1) whether Mr. Paukert witnessed defendant making defamatory statements about plaintiffs orally or in writing to third parties, which cannot be privileged (Evidence Code ; 912 waiver); (2) whether Mr. Paukert witnessed defendant making statements in the presence of third parties indicating malicious intent in filing the cross-complaint (also waiver under ; 912); (3) whether Mr. Paukert played any role in defendant’s witness intimidation tactics (threatening letters, pressure to ignore plaintiff’s deposition subpoenas), relevant to plaintiff’s abuse of process claim (Paukert’s own actions cannot be privileged communications).” (Motion, 7: 9-17..)

However, the burden for deposing former counsel is not to show that it is reasonably likely to produce admissible evidence. Rather, “[d]epositions of opposing counsel are presumptively improper, severely restricted, and require ‘extremely’ good cause—a high standard.” (Carehouse Convalescent Hospital v. Superior Court (2006) 143 Cal.App.4th 1558, 1562.) Plaintiff has not set forth any facts which would suggest that this evidence is so necessary to her case that it overcomes the presumption against deposing former counsel. (Ibid.)

Here, given the withdrawal of Defendant’s advice of counsel affirmative defenses, the Court finds that extremely good cause does not exist to compel the deposition of George Paukert.

Based on the foregoing, Plaintiff’s motion to compel the deposition of George Paukert is denied.

It is so ordered.

Dated: April , 2021

Hon. Jon R. Takasugi Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  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 all parties to a motion submit, the court will adopt this tentative as the final order. 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.

Due to Covid-19, the court is strongly discouraging in-person appearances. Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk. The court encourages the parties wishing to argue to appear via L.A. Court Connect. For more information, please contact the court clerk at (213) 633-0517. Your understanding during these difficult times is appreciated.



Case Number: ****9038    Hearing Date: March 11, 2020    Dept: 17

TENTATIVE RULING

On November 4, 2015, Plaintiff Cynthia Lopez initiated this action against Defendant Kenneth Lopez. The operative First Amended Complaint (“FAC”) was filed on June 27, 2017 and sets forth claims for 1) defamation—libel; 2) defamation—slander; 3) IIED; 4) NIED; 5) malicious prosecution of civil action; 6) abuse of process; and 7) injunctive relief. Defendant filed a Cross-Complaint which has since been dismissed. Plaintiff and Defendant are brother and sister; each accuses the other of financial abuse of their elderly parents.

Up for hearing are three motions. Two are motions to compel further written response to discovery requests, and are brought by Defendant. One is a motion to compel the deposition of non-parties and is brought by Plaintiff. The Court is in possession of the parties’ papers and, after having considered them together with all the parties’ arguments, proceeds to rule on all three motions.

1. Defendant’s Motions to Compel Further

Defendant has filed two motions to compel further: one as to his Request for Production of Documents (RPD) and one as to his Form Interrogatories (FROG).

a. RPD

As a preliminary matter with respect to the motion to compel further responses to requests for production of documents, Defendant has erroneously filed two copies of the Separate Statement on eCourt and has failed to file a copy of the memorandum of points and authorities. Moreover, Department 17 is not in possession of courtesy copies of the motion. This makes the motion difficult, if not impossible, to analyze and rule on.

In any case, it appears that the motion is mis-conceived. The Separate Statement indicates that the Requests at issue are Nos. 1-9. Of those requests, Plaintiff has provided a written statement of compliance to Nos. 1, 3, 4, and 6. (See, e.g., Plaintiff’s Response to Request No. 1 [“responding party will produce copies of the photographs shown to Jesse Lopez and Rachel Lopez at their depositions on October 1 and 2, 2019, and notes and call logs from telephone calls between responding party and Wells Fargo Bank representatives”].) Plaintiff’s statements of compliance appear to be Code-compliant and sufficient. Once a sufficient statement of compliance is served, the instant motion, which is a motion to compel further written response, no longer lies. Instead, a party wishing to compel an actual production of documents should file a motion pursuant to Code of Civil Procedure section 2031.320. This is not a section 2031.230 motion (see, e.g., Mot. p. 7:26), so the relief Defendant seeks cannot be granted.

As to the remaining Requests, in response to each, Plaintiff provided a list of specific documents. Plaintiff did not actually produce the documents because those documents were known to already be in Defendant’s possession. (Declaration of Daniel Boone (“Boone Decl.”) Exh. 1.) Plaintiff’s lists appear to be sufficient. The Requests at issue are contention questions in that they ask Plaintiff to produce documents that support certain of Plaintiff’s contentions. Plaintiff has responded with statements of compliance, lists of documents in the parties’ mutual possession, and a production of documents where necessary. Defendant may complain that Plaintiff’s production should have been more substantial, but Defendant merely asked for Plaintiff’s contentions. Plaintiff has provided those contentions, and Defendant cannot obtain any additional relief via discovery motions.

The motion to compel further response (RPD) is denied and $250 in sanctions are imposed upon Defendant and his counsel in connection with this motion.

b. FROG

Defendant’s motion to compel further response (FROG) is directed toward Form Interrogatory No. 17.1, which seeks facts, knowledgeable persons, and documents that support Plaintiff’s responses to Requests for Admission Nos. 1, 2, 4, 5, 6-18, 20, 21, 24, 26, 27, and 30-32.

Since this motion was filed, Plaintiff served supplemental responses to FROG 17.1 as it related to 1, 2, 4, 5, 6, 8-9, 11-18, 20, 24, 26, 27, and 30. The supplemental responses are substantial and they appear to contain significant information that the initial responses did not. Because Plaintiff has served supplemental responses, the motion is denied as moot as to these requests.

Plaintiff did not serve supplemental responses to FROG 17.1 re: RFA Nos. 7, 10, 21, 31, and 32.

Defendant’s memorandum is devoid of any argument that actually engages with the information requested by FROG 17.1 re: RFA Nos. 7, 10, 21, 31, and 32.

The Separate Statement fails to set forth any argument regarding RFA No. 7, so the motion is denied with respect to FROG 17.1 re: RFA No. 7.

Plaintiff refused to answer RFA No. 10, objecting to the Request as improperly compound. Plaintiff’s refusal to answer FROG 17.1 re: RFA No. 10 is justified in light of the objection. If Defendant believes that Plaintiff should provide a substantive response to RFA No. 10, Defendant should first move to compel further response to the RFA. If Defendant succeeds, Plaintiff provides a denial, and Plaintiff still refuses to answer FROG 17.1 re: RFA No. 10, Defendant may then move to compel further. The motion is denied as to FROG 17.1 re: RFA No. 10.

Plaintiff refused to answer RFA No. 21 due to its purported uncertainty and ambiguity. The analysis of FROG 17.1 re: RFA No. 21 is the same as that of FROG 17.1 re: RFA No. 10, and no further response is likewise required.

The same is the case with FROG 17.1 re: RFA Nos. 31 and 32. Plaintiff responded that after a reasonable inquiry the information known or readily obtainable was insufficient to enable her to admit or deny the matter. Defendant takes issue with the response to the RFAs themselves, not with Plaintiff’s refusal to produce the additional information requested by FROG 17.1. This is not a motion to compel further response to requests for admission, so the Court is without power to order responses to the actual RFAs. (People v. American Surety Ins. Co. (1999) 75 Cal.App.4th 719, 726.)

In light of the foregoing, the motion to compel further response (FROG) is denied and $250 in sanctions are imposed upon Defendant and his counsel in connection with this motion.

2. Motion to compel non-parties to produce documents at deposition

Finally, Plaintiff has filed a motion seeking to compel nonparties Jesse and Rachel Lopez (“Nonparties”) to produce documents pursuant to deposition subpoena. Nonparties are the elderly parents of Plaintiff and Defendant. Nonparties are represented by the same counsel as that of Defendant.

Nonparties appeared for their depositions on October 1 and October 2, 2019. The deposition subpoenas and notices served on them included document requests. (Declaration of Daniel Boone (“Boone Decl.”) Exhs. 1-2.) During their testimony, Nonparties admitted to having certain responsive documents in their possession, but they did not produce them, at least in part because their attorney advised them not to. (Boone Decl., Exh. 3 (Jesse Depo.) pp. 130-138; Exh. 4 (Rachel Depo.) pp. 46-51; 57:4-58:3.) This motion is directed toward Request Nos. 3-7 in the deposition document subpoena.

Personal service of a deposition subpoena obligates any resident of California to appear, testify and produce whatever documents or things are specified in the subpoena, and to appear in any proceedings to enforce discovery. (Code Civ. Proc., ; 2020.220, subd. (a)-(c).) Moreover, a subpoena for a deposition of a non-party is enforceable by a motion to compel compliance brought pursuant to Code of Civil Procedure section 1987.1. This section provides that “[i]f a subpoena requires the attendance of a witness . . . the court, upon motion reasonably made … or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order … directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.”

As a preliminary matter, Nonparties argue that the motion is untimely under Code of Civil Procedure section 2025.480, subdivision (b). However, that section governs deposition subpoenas served on party deponents, and it is therefore inapplicable here. Here, the proper standard is section 1987.1. Under that section, there is no hard-and-fast time limit for bringing a motion, and “[u]nlike the motion against a party deponent . . . , the motion to compel a nonparty’s attendance does not require the deponent to serve objections; the parties and their attorneys need not confer; and monetary sanctions against the losing party are not mandatory.” (Cal. Judges Benchbook Civ. Proc. Discovery (Aug. 2019) ; 15.38.)

No. 3

With request No. 3, Plaintiff seeks “ALL WRITINGS regarding any and all real and/or other property where deponent has any current or prior ownership or beneficiary interest, including but not limited to the real property of 1351 Seventh Avenue, Hacienda Heights, California.” Plaintiff argues that these documents go to Nonparties’ credibility. Nonparties have stated in deposition that their son, Defendant, did not take a commission when he facilitated the sale of Nonparties’ Hacienda Heights home. Plaintiff contends that the requested documents are likely to show that Defendant did indeed take a commission, which would undermine Nonparties’ credibility. Plaintiff expects Nonparties to testify in Defendant’s favor at trial, so the credibility of Nonparties is at issue.

Other than for credibility evidence, Plaintiff has not made any fact-specific showing of the relevance of this requested information to the disputed issues of fact raised by the lawsuit itself. The document request is grossly overbroad in light of the narrow class of information requested by it and no production of documents pursuant to Request No. 3 will be compelled.

No. 4

With request No. 4, Plaintiff seeks all her parents’ wills and other testamentary writings. These documents are relevant to Plaintiff’s damages. In the FAC, Plaintiff alleges that Defendant defamed Plaintiff to their parents that that the defamatory statements caused their parents to disinherit Plaintiff. The extent and timing of any such disinheritance would be relevant in determining whether and to what extent Plaintiff suffered damages as a result of Defendant’s defamatory statements. The major objection with regard to this Request is the privacy objection. Wills and testamentary documents are protected from discovery under the right of privacy set forth in the California Constitution, and as such, there must be a compelling need for their discovery before the Court will order it. (Estate of Gallio (1995) 33 Cal.App.4th 592, 597.)

Plaintiff has agreed to a protective order; Nonparties reject this contention because they apparently do not want Plaintiff herself to be in possession of these documents.

The disinheritance allegations are central to this action. Moreover, this is a family dispute, where privacy concerns must be analyzed differently than in the context of transactions that occur at more of an arm’s length.

When in doubt, the Court is to resolve discovery disputes in favor of discovery. Plaintiff alleges that Defendant took advantage of his live-in relationship with their parents to turn their parents against Plaintiff and get her disinherited. If true, testamentary documents would undoubtedly be directly relevant and should be revealed through the discovery process. And the best way to test whether those allegations are true is to allow discovery of the documents.

The motion is granted as to Request No. 4, with the proviso that only the testamentary documents which Nonparties have actually signed need be produced.

No. 5

Plaintiff designates Request No. 5 as the “Bill-Paying Documents” request. With request No. 5, Plaintiff seeks all documents evidencing any bills of Defendant’s that Nonparties might have paid for Defendant while Defendant was living with them. Plaintiff argues:

“Evidence that two elderly people in their 80’s, living on fixed income, isolated from all their children except defendant who lives with them, are paying bills to support their able-bodied son who claims to be gainfully employed, while providing no evidence of full-time employment, bears on their bias and his undue influence over them.” (Separate Statement, p. 17.)

The Court is not convinced that the benefit Plaintiff would gain by having evidence that Nonparties paid Defendant’s bills is substantial enough to outweigh the significant privacy interests implicated by this request. As with testamentary documents, personal financial information is protected by the state constitutional right of privacy, and there must be a compelling interest supporting disclosure. (Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 655.) Moreover, the fact that elderly parents paid their child’s bills could just as easily be evidence of genuine familial affection as it could of bias or undue influence, so the requested discovery is of questionable utility. Accordingly, the burden appears to outweigh the benefit.

The Court is willing to hear from the parties regarding how this request might be narrowed, but the motion is denied as to Request No. 5 as worded.

No. 6

With Request No. 6, Plaintiff seeks “ALL WRITINGS demonstrating any gifts of monies and/or real property from [Nonparties] to third persons, including but not limited to defendant Kenneth Lopez.” Plaintiff argues that these writings will demonstrate whether Nonparties are credible witnesses, in that:

“Evidence that two elderly people in their 80’s, living on fixed income, isolated from all their children except defendant who lives with them, are giving gifts of real property or money to their able-bodied son who claims to be gainfully employed, is evidence of their bias and his undue influence over them.”

Once again, the Court is not convinced that this theory is strong enough to overcome the privacy concerns of Nonparties. Evidence that parents are giving gifts to their live-in child could just as easily be evidence of those parents’ genuine affection and appreciation for their child. Plaintiff’s theory may be right, but Plaintiff needs to make a stronger factual showing of the potential benefit of this information before the Court will conclude that there is a compelling need for it.

No. 7

With Request No. 7, Plaintiff seeks a copy of Nonparties’ deposition transcript of June 10, 2016. At the time this deposition took place, Plaintiff was self-represented; it appears that, due to a clerical error on Plaintiff’s part, Plaintiff never received the deposition transcript. Defendant refuses to produce the deposition transcript unless Plaintiff reimburses certain deposition. This is improper. Counsel and parties need to treat each other with civility and respect and make reasonable concessions along the way. Holding documents hostage is not in the spirit of cooperation and is frowned upon by the Court. The Court should not have been burdened with Request No. 7, and Nonparties are ordered to produce the deposition transcript forthwith, either by sending a digital copy or by making a physical copy available for photocopying.

Based on Requests Nos. 3, 5, and 6, sanctions upon Plaintiff are warranted; based upon Request No. 7, sanctions upon Nonparties’ counsel are warranted. On the balance, the Court determines that no sanctions are appropriate in connection with this third motion.

CONCLUSION

Defendants’ motions to compel further response (RPD and FROG) are DENIED.

Plaintiff’s motion to compel Nonparties Rachel and Jesse Lopez to produce documents pursuant to deposition subpoena is GRANTED with respect to Request No. 4 (signed testamentary documents only) and with respect to Request No. 7. The motion is DENIED with respect to Request Nos. 3, 5, and 6.

In connection with all three motions, a total of $500 in sanctions is imposed upon Defendant and his counsel.



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