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.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
RICHARD E. RICO
ELIZABETH ALLEN WHITE
LOPEZ KENNETH AN INDIVIDUAL
LOS ANGELES COUNTY ADULT PROTECTIVE
LAW OFFICES OF JUSTIN ROMIG
LAW OFFICES OF GEORGE J. PAUKERT
ALEEN L. LANGTON DEPUTY COUNTY COUNSEL
LAW OFFICES OF DILIP VITHLANI APC
7/20/2017: MINUTE ORDER
7/20/2017: DEFENDANT'S REPLY TO PLAINTIFF'S OPPOSITION TO MOTION TO STRIKE MEMORANDUM OF COSTS, OR IN THE ALTERNATIVE TO TAX COSTS TAX COSTS; ETC.
11/30/2017: DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL COMPLIANCE WITH COURT'S PRIOR DISCOVERY ORDERS, FOR AN ORDER TO SHOW CAUSE RE CONTEMPT, AND FOR SANCTIONS; ETC.
10/16/2017: REPLY TO OPPOSITION TO SPECIAL MOTION TO STRIKE; ETC
9/6/2017: Minute Order
8/10/2017: PLAINTIFF CYNTHIA LOPEZ? NOTICE OF OPPOSITION TO DEFENDANT'S SPECIAL MOTION TO STRIKE
7/20/2017: NOTICE OF INCOMING TRANSFER
7/20/2017: DECLARATION OF RACHEL LOPEZ IN OPPOSITION TO EX PARTE APPLICATIONS FOR CONTEMPT/SANTIONS ORDIR RE; ORDER ON MOTION TO COMPEL FURTHER IDEPOSITIONS OF JESSE AND RACHEL LOPEZ; ORDER REQUIRING APPEARANCE
7/20/2017: DECLARATION OF KENNETH LOPEZ IN OPPOSITION TO EX PARTE APPLICATIONS FOR CONTEMPT/SANTIONS ORDER RE; ORDER ON MOTION TO COMPEL FURTHER RESPONSES
7/20/2017: COUNTY OF LOS ANGELES' OBJECTION TO PLAINTIFF'S MOTION FOR AN ORDER COMPELLING ADULT PROTECTIVE SERVICES AND RUBEN CAMPA TO COMPLY WITH SUBPOENAS FOR PRODUCTION OF BUSINESS RECORDS AND APPEARANCE AT D
7/20/2017: AFFIDAVIT CITY OF INDUSTRY SHERIFF'S STATION
7/20/2017: ORDER OF DISMISSAL JUDGMENT # 1 OF 1
7/20/2017: DECLARATION OF GEORGE J. PAUXERT IN REPLY TO PLAINTIFF'S SUPPLEMENTAL DECLARATION RE COURT'S ORDER TO SHOW CAUSE RE DISMISSAL;
7/20/2017: EX PARTE APPLICATION FOR ORDER TO SHOW CAUSE RE CONTEMPT, AND FOR SANCTIONS; OR, ALTERNATIVELY, FOR AN ORDER TO SHOW CAUSE RE COMPLIANCE, AND FOR SANCTIONS; DECLARATION OF CYNTHIA LOPEZ IN SUPPORT; ME
7/20/2017: Minute Order
7/20/2017: Minute Order
7/20/2017: Minute Order
7/20/2017: Minute Order
at 08:30 AM in Department 17, Richard E. Rico, Presiding; Status Conference (Status Conference; Off Calendar) -Read MoreRead Less
Minute OrderRead MoreRead Less
PLAINTIFF CYNTHIA LOPEZ' STATUS CONFERENCE STATEMENTRead MoreRead Less
Proof of Service (not Summons and Complaint); Filed by CYNTHIA LOPEZ (Plaintiff)Read MoreRead Less
PROOF OF SERVICE OF: NOTICE OF STATUS CONFERENCE AND ORDERRead MoreRead Less
Notice of Status Conference filed; Filed by ClerkRead MoreRead Less
NOTICE OF STATUS CONFERENCE AND ORDERRead MoreRead Less
NOTICE OF STATUS CONFERENCE AND ORDERRead MoreRead Less
CLERK'S CERTIFICATION OF RECORD ON APPEALRead MoreRead Less
at 08:30 AM in Department 17, Richard E. Rico, Presiding; Ex-Parte Proceedings (Exparte proceeding; Matter continued) -Read MoreRead Less
PLAINTIFF 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 PLEADINGSRead MoreRead Less
PLAINTIFF'S REPLY DECLARATION REGARJ)[NG PROPOSED ORDER ON PLAINTIFF S MOTION TO COMPEL FUTHER RESPONSES FROM DEFENDANTRead MoreRead Less
CIVIL DEPOSITRead MoreRead Less
DEFENDANT'S JOINT STATEMENT RE DISCOVERY ISSUES, DECLARATIONS OF KENNETH LOPEZ, JESSE LOPEZ, RACHEL LOPEZRead MoreRead Less
NOTICE OF CHANGE OF ADDRESS FOR DEFENDANT' COUNSELRead MoreRead Less
NOTICE OF CASE ASSIGNMENTRead MoreRead Less
DECLARATION OF KENNETH LOPEZ IN OPPOSITION TO EX PARTE APPLICATIONS FOR CONTEMPT/SANTIONS ORDER RE; ORDER ON MOTION TO COMPEL FURTHER RESPONSESRead MoreRead Less
PLAINTIFF'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.Read MoreRead Less
PLAINTIFF'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 DEPOSITIONRead MoreRead Less
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.Read MoreRead Less
Case Number: BC669038 Hearing Date: March 11, 2020 Dept: 17
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).
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.
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.)
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.
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.
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.
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.
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.
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.