On 09/07/2017 JOHN BECKHAM filed a Personal Injury - Other Personal Injury lawsuit against NIKO ENTERPRISES LLC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are BENNY C. OSORIO and MARK C. KIM. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
BENNY C. OSORIO
MARK C. KIM
BECKHAM JOHN ON BEHALF OF HIS MINOR
DOES 1 THROUGH 25
NIKO ENTERPRISES LLC
WINTERS JONATHAN D. ESQ.
WINTERS JONATHAN DANIEL ESQ.
SAFARIAN HARRY A. ESQ.
SAFARIAN AROUTUN HARRY ESQ.
1/22/2018: PROOF OF SERVICE OF SUMMONS
2/7/2018: DEFENDANTS? REPLY TO PLAINTIFFS? OPPOSITION TO MOTION TO STRIKE PORTIONS OF COMPLAINT
7/23/2018: Other -
1/3/2019: Minute Order
5/2/2019: Request for Judicial Notice
2/15/2018: ORDER TRANSFERRING PERSONAL INJURY (PI) CASE TO AN INDEPENDENT CALENDAR (IC) COURT
2/15/2018: Minute Order
7/12/2018: Case Management Statement
7/23/2018: Case Management Statement
10/24/2018: Ex Parte Application
1/31/2018: OPPOSITION TO DEFENDANTS' MOTION TO STRIKE
1/31/2018: OPPOSITION TO DEFENDANTS' DEMURRER
Separate Statement; Filed by John Beckham (Plaintiff)Read MoreRead Less
Motion to Compel Further Discovery Responses; Filed by John Beckham (Plaintiff)Read MoreRead Less
Answer; Filed by Matt Antoniou (Defendant); Niko Enterprises, LLC (Defendant)Read MoreRead Less
at 08:30 AM in Department S27, Mark C. Kim, Presiding; Hearing on Demurrer - with Motion to Strike (CCP 430.10) - HeldRead MoreRead Less
Minute Order ((Hearing on Demurrer - with Motion to Strike (CCP 430.10))); Filed by ClerkRead MoreRead Less
Tentative Ruling and Final Order; Filed by ClerkRead MoreRead Less
Defendants' Reply to Plaintiffs' Opposition to Demurrer to Second Amended Complaint; Filed by Matt Antoniou (Defendant); Niko Enterprises, LLC (Defendant)Read MoreRead Less
Defendants' Reply to Plaintiffs' Opposition to Motion to Strike Portions of Second Amended Complaint; Filed by Matt Antoniou (Defendant); Niko Enterprises, LLC (Defendant)Read MoreRead Less
Opposition (To Motion To Strike Punitive Damages From Second Amended Complaint); Filed by John Beckham (Plaintiff); Beckham, John, on behalf of his minor (Plaintiff)Read MoreRead Less
Opposition (To Demurrer To Second Amended Complaint); Filed by John Beckham (Plaintiff); Beckham, John, on behalf of his minor (Plaintiff)Read MoreRead Less
APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEMRead MoreRead Less
Application ; Filed by Plaintiff/PetitionerRead MoreRead Less
Declaration; Filed by Niko Enterprises, LLC (Defendant); Matt Antoniou (Defendant)Read MoreRead Less
Declaration (OF HARRY A. SAFARIAN PURSUANT TO CCP 430.41 ); Filed by Attorney for Defendant/RespondentRead MoreRead Less
Declaration; Filed by DefendantRead MoreRead Less
DECLARATION OF HARRY A. SAFARIAN PURSUANT TO CCP 430.41Read MoreRead Less
Complaint; Filed by John Beckham (Plaintiff); JOHN BECKHAM - INDIV. (Plaintiff); Beckham, John, on behalf of his minor (Plaintiff) et al.Read MoreRead Less
ComplaintRead MoreRead Less
COMPLAINT FOR DAMAGES: 1) BREACH OF IMPLIED WARRANTY OF HABITABILITY ;ETCRead MoreRead Less
SUMMONSRead MoreRead Less
Case Number: BC675126 Hearing Date: January 02, 2020 Dept: S27
Plaintiffs John Beckham et al. (collectively “Beckham”) request imposition of $3,000 in monetary sanctions against Defendants Nikko Enterprises LLC and Matt Antoniou, their attorney the Safarian Firm APC and insurer State Farm Insurance.
The legal basis for the request is:
1. CCP §575.2:
“(a) Local rules promulgated pursuant to Section 575.1 may provide that if any counsel, a party represented by counsel, or a party if in pro se, fails to comply with any of the requirements thereof, the court on motion of a party or on its own motion may strike out all or any part of any pleading of that party, or, dismiss the action or proceeding or any part thereof, or enter a judgment by default against that party, or impose other penalties of a lesser nature as otherwise provided by law, and may order that party or his or her counsel to pay to the moving party the reasonable expenses in making the motion, including reasonable attorney fees. No penalty may be imposed under this section without prior notice to, and an opportunity to be heard by, the party against whom the penalty is sought to be imposed.
(b) It is the intent of the Legislature that if a failure to comply with these rules is the responsibility of counsel and not of the party, any penalty shall be imposed on counsel and shall not adversely affect the party’s cause of action or defense thereto.
2. Los Angeles Superior Court Local Rule 3.25(d) (Settlement Conferences)
3. Los Angeles Superior Court Local Rule 3.10(Sanctions for failure to comply with local rules)
The factual basis for the motion is that on July 8, 2019 the court ordered the parties to a mandatory settlement conference pursuant to their stipulation. (Exhibit 1)
Plaintiff’s counsel declares that he and his client appeared for the MSC on July 25, 2019.
It appears that the MSC was unsuccessful because there was not anyone with full authority to settle the case – i.e. someone from the insurance company. Nor was anyone from the insurer’s office available by phone.
Although Plaintiff asserts that the settlement judge (Judge Kahn) “agreed this was bad faith” that is mere hearsay without exception.
As an initial mater, State Farm Insurance is not a party to this action. Personal service would be necessary for the court to have jurisdiction. Plaintiffs did not even serve the motion by mail. The court did not order State Farm Insurance to attend the MSC and the stipulation does not mention State Farm Insurance.
The motion is denied as to State Farm Insurance without further discussion.
The court will take argument on why Defendant did not have someone with settlement authority and the appropriate amount of sanctions, if warranted.
Case Number: BC675126 Hearing Date: October 24, 2019 Dept: S27
This is a landlord-tenant dispute.
On September 11, 2019, the court granted in-part Defendants’ ex parte application FOR ORDER STRIKING PLAINTIFFS' UNTIMELY DESIGNATION OF EXPERT WITNESSES, OR
IN THE ALTERNATIVE, AN ORDER SHORTENING TIME FOR A HEARING ON SAME MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT. The court set a hearing date for 10/24/19. The court also determined that it would set the trial date at this hearing. (Minute Order, 9/11/19.)
MOTION TO STRIKE PLAINTIFFS’ DESIGNATION OF EXPERTS
After an initial trial date is set, “[a]ny party may demand a mutual and simultaneous exchange by all parties of a list containing the name and address of any natural person, including one who is a party, who’s oral or deposition testimony in the form of an expert opinion any party expects to offer in evidence at the trial.” (Code Civ. Proc., § 2034.210(a).)
“The demand shall specify the date for the exchange of lists of expert trial witnesses, expert witness declarations, and any demanded production of writings. The specified date of exchange shall be 50 days before the initial trial date, or 20 days after service of the demand, whichever is closer to the trial date, unless the court, on motion and a showing of good cause, orders an earlier or later date of exchange.” (Code Civ. Proc., § 2034.230(b).)
“Except as provided in Section 2034.310 and in Articles 4 (commencing with Section 2034.610) and 5 (commencing with Section 2034.710), on objection of any party who has made a complete and timely compliance with Section 2034.260, the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following:
(a) List that witness as an expert under Section 2034.260….”
(Code Civ. Proc., § 2034.300.)
Defendants move to strike Plaintiffs’ expert designations on the ground that Plaintiffs failed to simultaneously exchange designations after Defendants made a proper demand by setting a date to exchange and thereafter provided their designations to Plaintiffs on the exchange date.
The background is as follows. The trial was originally set for October 7, 2019. In connection with the initial trial date, Defendants served a demand to exchange expert witnesses, expert declarations, and all reports and writings of any designated expert. The initial demand indicated that designations were to be exchanged on August 30, 2019. But, because this date did not comply with section 2034.240 (it was less than 50 days before trial), Defendants served a corrected demand, setting the exchange date for August 19, 2019. On August 19, 2019, Defendants provided its expert designations, but Plaintiffs did not. Instead, on August 30, 2019, pursuant to the other demand notice, Plaintiffs provided its expert designations.
Initially, the court determines whether August 19, 2019 was a proper date set by Defendants for the expert exchange. Plaintiffs contend it was not. Under section 2034.230(b), the exchange date must be at least 50 days before trial. “Where any law requires an act to be performed no later than a specified number of days before a hearing date, the last day to perform that act shall be determined by counting backward from the hearing date, excluding the day of the hearing as provided by Section 12.” (Code Civ. Proc., § 12c(a).) Under section 12, “holidays” are excluded from the counting, and under section 10, Sundays are included as “holidays”. Here, 50 days counting backward from October 7, 2019 is Sunday, August 18, 2019. Thus, that date is not counted because it is a holiday. Thus, Monday, August 19, 2019, was a proper expert designation date.
Next, the court considers whether the demand that included the August 19, 2019 date was properly served on Plaintiffs. Plaintiffs contend they never received the demand. (Opp. 3:9.) In the moving papers, Defendants provide the demand notice that appears to have a valid proof of service. (Babaian Decl., Exh. A.) In opposition, Bret Ferguson and James Veloff, who both work in connection with the firm representing Plaintiffs, state that after they reviewed the documents in their file for this case, they could not find a demand notice setting the exchange date for August 19, 2019. (Ferguson Decl. ¶ 5; Veloff Decl. ¶ 5.) There is no declaration from Jonathan D. Winters, who is the named attorney for the firm where the demand notice was sent.
Based on the foregoing, the evidence weighs in favor of service being proper. First, Ferguson is not an attorney in the Law Office of Jonathan D. Winters, and thus there is an insufficient foundation that Ferguson knows whether the demand notice was received by that firm. Second, Veloff’s statements about knowledge of the demand notice is limited to whether it was within the “client files”. This evidence is insufficient to overcome the demand notice’s proof of service that is undisputedly valid.
Next, the court considers the parties “simultaneously” exchanged expert designations with Defendants. A request for simultaneous exchange of expert designations under CCP section 2034, et seq. means an exchange of experts at the same time. (See Fairfax v. Lords (2006) 138 Cal.App.4th 1019, 1021 [“we conclude that ‘simultaneous’ means ‘occurring at the same time.’”]; see also Id. at 1027.) Here, the demand notice requested a simultaneous exchange under section 2034, et seq. (Babaian Decl., Exh. A.) Defendants served their designation of experts on August 19, 2019. (Id. at Exh. B.) Plaintiffs served their designation of experts on August 30, 2019. (Veloff Decl. ¶ 2.) Therefore, there was not a simultaneous exchange pursuant to section 2034.210.
Finally, the court considers whether to exclude Plaintiffs’ expert evidence based on the failure to simultaneously exchange their expert designations. “[T]he trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following:(a) List that witness as an expert under Section 2034.260….” (Code Civ. Proc., § 2034.300(a); see Fairfax v. Lords, supra, 138 Cal.App.4th at 1027.)
Here, Plaintiffs argue that they acted reasonably, and therefore, the remedy to exclude their expert evidence is not warranted. (Opp. 4:8.) This argument is based on the premise that Defendants served an invalid demand notice. But, as discussed above, the demand notice was not invalid based on either the 50-day rule or by served. Thus, this argument fails.
The court notes that Plaintiffs generally repeat the above argument throughout the opposition papers. The other iterations of the argument are also unpersuasive.
Plaintiffs also argue that “Nothing in either demand requires a simultaneous exchange, and only cites to code of civil procedure "2034 et seq." which allows for an exchange at any time before the date set for the exchange.” (Opp. 5:21-23.) While it is true that the demand notice does not expressly state “simultaneous” exchange, the statutory schemed cited (CCP section 2034, et seq.) is Chapter 18 of the Civil Discovery Act entitled, “Simultaneous Exchange of Expert Witness Information”. Thus, the court is not persuaded by Plaintiffs’ suggestion that the notice was not for a simultaneous exchange.
Lastly, Plaintiffs argue again that their failure to comply with the discovery statute was not unreasonable because they were served two demand notices without explanation from Defendants and thereafter complied with one of them. (Opp. 7:1-7.)
Under the circumstances, the court determines that Plaintiffs failure to comply with the requirements of section 2034, et seq. was not unreasonable. Defendants concede they sent both demand notices (one dated for exchange on August 30, 2019, and one dated for exchange on August 19, 2019) to Plaintiffs, but do not assert that they made any other communication indicating which one was operative. Further, Defendants do not provide the date the August 30, 2019 notice was served or in what manner is was served, and thus, it is possible Plaintiffs received that notice near the same time or after the August 19, 2019 notice. (See Babaian Decl. ¶ 4.)
In reply, Defendants attempt to place the burden on Plaintiffs to engage in a meet and confer over whether over any confusion created by the two demand notices. (Reply, p. 3, fn. 2.) But, no authority is cited requiring the burden to be placed on Plaintiffs to resolve confusion created by Defendants’ discovery notices. Instead, the purpose of discovery is self-executing, so both parties should be assertive in making the requests for discovery clear, especially when apparently duplicative notices are sent.
These circumstances are distinguishable from Fairfax because in that case it was the party’s express intent to not provide a simultaneous exchange of expert designations in order to learn what the other party’s designations were. (Fairfax v. Lords, supra, 138 Cal.App.4th at 1026.) Here, there is no evidence of such intent. Instead, there is only evidence that Plaintiffs complied with the August 30, 2019 demand notice.
Accordingly, Defendants motion is DENIED.
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