IRESHA FAIRBANKS VS MARK TOWELL

Tentative Rulings

Case Number: ****3378 Hearing Date: March 1, 2022 Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On May 31, 2017, plaintiff Iresha Fairbanks (“Plaintiff”) filed this action against Mark Towell arising from a March 22, 2016, motor vehicle accident. On November 16, 2017, Plaintiff filed the operative First Amended Complaint naming Mark Tidwell as the defendant (“Defendant”). Defendant filed an answer on December 27, 2018. On November 4, 2019, the Court granted Defendant’s counsel’s motion to be relieved.

On February 19, 2021, the Court granted Plaintiff’s motion to compel Defendant’s discovery responses and ordered Defendant to serve verified responses without objections and pay $580 in monetary sanctions within 20 days.

On January 6, 2022, Plaintiff filed this motion for terminating sanctions against Defendant for his failure to obey the Court’s order on February 19, 2021, to serve responses and pay sanctions. Plaintiff requests that the Court strike Defendant’s answer and to enter Defendant’s default, with a prove-up of damages to occur later. This is the third motion for terminating sanctions that Plaintiff has filed, with the previous two denied for various procedural reasons, including the failure to serve a notice of ruling and serving Defendant only by mail.

Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidentiary or monetary sanctions. (See Code Civ. Proc., 2023.010(g), 2030.290(c); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) “[A] penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.” (Brown v. Superior Court (1986) 180 Cal.App.3d 701, 707.) Pursuant to CCP Section 2023.030(d):

The court may impose a terminating sanction by one of the following orders:

(1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.

(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.

(4) An order rendering a judgment by default against that party.

(Code Civ. Proc., 2023.030(d).)

A simple lack of diligence may be deemed willful where the party knew there was an obligation, had the ability to comply, and failed to do so. (See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 787.) A “conscious or intentional failure to act, as distinguished from accidental or involuntary noncompliance, is sufficient to invoke a penalty.” (Id. at 787-88.) The party with the obligation to respond to discovery bears the burden of showing that the failure to respond or comply was not willful. (See Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250, 252-53.)

Defendant did not oppose this motion and it is undisputed that he failed to serve responses or pay sanctions as ordered by the Court. Plaintiff served Defendant with this motion through personal service, and this motion includes a copy of the notice of the Court’s ruling from February 19, 2021, all the outstanding discovery requests and unverified responses, as well as a statement of damages. Therefore, the Court concludes that Defendant knew of his discovery obligations, failed to comply with them, and failed to show that his noncompliance was not willful. Accordingly, Plaintiff’s motion for terminating sanctions is GRANTED and default shall be entered against Defendant.

The Court sets an OSC re: Failure to Enter Default Judgment for May 2, 2022, at 8:30 a.m.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

b'

Case Number: ****3378 Hearing Date: December 27, 2021 Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On May 31, 2017, plaintiff Iresha Fairbanks (“Plaintiff”) filed this action against Mark Towell arising from a March 22, 2016 motor vehicle accident. On November 16, 2017, Plaintiff filed the operative First Amended Complaint naming Mark Tidwell as the defendant (“Defendant”). Defendant filed an answer on December 27, 2018.

On November 1, 2019, the Court granted defense counsel’s motion to be relieved. A proof of service filed on November 5, 2019, reflects that the order relieving counsel from representation was served on Defendant on November 5, 2019, by mail.

On February 19, 2021, the Court granted Plaintiff’s motion to compel Defendant’s discovery responses and ordered Defendant to serve verified responses without objections and pay $580 in monetary sanctions within 20 days.

On July 22, 2021, Plaintiff filed a motion for terminating sanctions or, in the alternative, evidentiary, issue, and monetary sanctions against Defendant. The Court denied this Motion for failure to give notice of the Court’s ruling on February 19, 2021 (the “February 19 Order”). The Court also ordered Plaintiff to show that a statement of damages had been served.

On November 16, 2021, Plaintiff filed a document giving notice of the February 19 Order. However, the notice was served on Defendant by mail on 2109 East 124th Street, Compton, California 90222-1234 (the “Compton Address”) and on 12433 S. San Pedro Street, Los Angeles, California 90061. On the order granting Defendant’s counsel’s motion to be relieved, the Compton Address was identified as Defendant’s “last known” address. As stated in the order, service must be made according to Code of Civil Procedure section 1011(b) and rule 3.252 of the California Rules of Court. However, Plaintiff’s motion and notice of ruling were only served by mail.

Plaintiff’s motion is further defective in that Plaintiff does not submit evidence that would allow the Court to render a judgment of default. Under California law, the party in default has confessed the material allegations of the complaint. (Johnson v. Stanhiser (1999) 72 Cal.App.4th 357, 361–362.) Accordingly, when evaluating a default prove-up package, if the complaint properly states a cause of action, the only additional proof required for the judgment is that needed to establish the amount of damages. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 898.) The only evidentiary facts that have a place at a prove-up hearing are those concerning the damages alleged in the complaint. Id. at 899 to 900. The Court can only enter a default judgment that “as appears by the evidence to be just.” (Code Civ. Proc., 585, subd. (b).) Accordingly, Plaintiff’s motion for terminating sanctions and for the Court to strike Defendant’s answer and enter default judgment is denied without prejudice.

Plaintiff’s request for monetary sanctions is also denied due to Plaintiff’s failure to serve Defendant according to the Court’s order on defense counsel’s motion to be relieved.

Plaintiff’s motion is DENIED without prejudice.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.

b"

Case Number: ****3378 Hearing Date: August 25, 2021 Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On May 31, 2017, plaintiff Iresha Fairbanks (“Plaintiff”) filed this action against Mark Towell. On November 16, 2017, Plaintiff filed the operative First Amended Complaint naming Mark Tidwell as the defendant (“Defendant”). Defendant filed an answer on December 27, 2018.

On November 1, 2019, the Court granted defense counsel’s motion to be relieved. A proof of service filed on November 5, 2019, reflects that the order relieving counsel from representation was served on Defendant on November 5, 2019, by mail.

On February 19, 2021, the Court granted Plaintiff’s motion to compel Defendant’s discovery responses and ordered Defendant to serve verified responses without objections and pay $580 in monetary sanctions within 20 days.

On July 22, 2021, Plaintiff filed this motion for terminating sanctions or, in the alternative, evidentiary, issue, and monetary sanctions against Defendant.

Plaintiff has not served a notice of the February 19, 2021, ruling. The Court notes Plaintiff filed a notice of ruling on May 21, 2021, but this notice of ruling erroneously reflects that a hearing was held on May 21, 2021, where the Court granted her motions to compel and ordered Defendant to pay sanctions.

There is no evidence that Defendant has been served with a statement of damages. A separate statement of damages claimed by plaintiff in personal injury and wrongful death actions must be served on defendant before entry of default, including where defendant's answer is stricken as a discovery sanction. (Code Civ. Proc. ; 425.11; Morgan v. Southern Calif. Rapid Transit Dist. (1987) 192 CA3d 976, 985.)

Plaintiff’s requests for evidentiary, issue, or monetary sanctions are also denied. The notice of motion does not specify the evidentiary or issue sanctions sought. (Code Civ. Proc., ; 2023.040.) A motion for issue or evidentiary sanctions must also be accompanied by a separate statement. (CRC 3.1345, subd. (a)(7).)

Plaintiff’s motion is DENIED without prejudice.

Moving party to give notice.

Case Number: ****3378    Hearing Date: February 19, 2021    Dept: 27

Motion to Compel Discovery (tentative ruling)

Case Number: ****3378    Hearing Date: November 01, 2019    Dept: 4B

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

Alan P. Trafton, of Gates, Gonter, Guy, Proudfoot & Muench, LLP, seeks to be relieved as counsel for defendant Mark Tidwell (“Defendant”). Mr. Trafton was retained by State Farm Mutual Automobile Insurance Company (“State Farm”) to represent their insured, Defendant. A separate declaratory relief action was also filed by State Farm against Defendant. A judgment in favor of State Farm was filed in the declaratory relief action, and State Farm is now withdrawing its defense of Defendant. Absent a showing of resulting prejudice, an attorney’s request for withdrawal should be granted. (People v. Prince (1968) 268 Cal.App.2d 398, 406.) Trial in this matter is currently set for March 17, 2020 and no prejudice will result from granting this motion. Accordingly, this unopposed motion to be relieved is GRANTED and effective upon filing a proof of service showing service of this Order on Defendant and all parties who have appeared.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT4B@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. The Court will be dark on November 1, 2019. A party requesting argument should contact Department 4B for an alternate hearing date.