Tentative Rulings

Case Number: BC653654    Hearing Date: October 31, 2019    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Moving Party: Plaintiff Kathy Lohr

Responding Party: None

The Court has considered the moving papers and notices.

Background

On March 7, 2017, Plaintiff Kathy Lohr (“Plaintiff”) filed the instant action against Defendants Julie Merrill and Erick Merrill (collectively “Defendants”).

On January 19, 2018, Plaintiff filed a second amended complaint, asserting causes of action for equitable estoppel, breach of oral contract, and breach of oral contract and restitution.

On February 21, 2018, Defendants filed an answer to the complaint.

On October 29, 2018, the court granted Defendants’ motion to expunge lis pendens.

Legal Standard

C.C.P. §2025.450(a) provides, as follows: “ If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.”

C.C.P. §2025.450(b) provides, as follows:

A motion under subdivision (a) shall comply with both of the following:

(1)

(2) , or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.

C.C.P. §2025.450(g)(1) provides, as follows: “If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

C.C.P. §639(a) provides, in pertinent part, as follows: “ When the parties do not consent, the court may, upon the written motion of any party, or of its own motion, appoint a referee in the following cases pursuant to the provisions of subdivision (b) of Section 640…(5) When the court in any pending action determines that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon.”

Discussion

Plaintiff moves for orders compelling Defendants’ depositions, pursuant to C.C.P. §2025.450(a), and appointing a referee to preside over the depositions and contemporaneously rule on objections, pursuant to C.C.P. §§639(a) and 640(b). Plaintiff also requests an award of sanctions against Defendants and their attorneys, Scott Fridley, Esq. and the Fridley Law Firm, jointly and severally, pursuant to C.C.P. §2025.450(g)(1).

Plaintiff has submitted evidence showing Defendants filed a Chapter 7 Voluntary Bankruptcy Petition on October 24, 2019. (Notice (filed 10/28/19), Declaration of Berger, pgs. 3-4; Exhibit 9.) As conceded by Plaintiff, the case is stayed as to all further proceedings against Defendants, absent further action and/or permission of the bankruptcy court. (Notice (filed 10/28/19), Declaration of Berger, pg. 4.) (See Higgins v. Superior Court (2017) 15 Cal.App.5^th 973, 979-980 (“The filing of a voluntary chapter 7 bankruptcy petition ‘operates as a stay, applicable to all entities, of—[¶] (1) the commencement or continuation … of a judicial … action or proceeding against the debtor.’ [Citations] ‘‘The automatic stay is self-executing and is effective upon filing the bankruptcy petition.’’ [Citations] Significantly, ‘the automatic stay of judicial proceedings against a debtor in bankruptcy does not apply to nondebtor codefendants.’ [Citations]”).)

Plaintiff, despite the bankruptcy filing, requests the court determine the issue of sanctions against Defendants’ counsel. However, the court will not consider Plaintiff’s request for sanctions against Defendants’ counsel in light of the bankruptcy stay and the fact that there has been no ruling on the merits of Plaintiff’s motion. C.C.P. §2025.450(g)(1), on which Plaintiff relies, only provides for sanctions if a motion under C.C.P. §2025.450(a) is granted.

Based on the foregoing, Plaintiff’s motion is placed off-calendar. The case is stayed as to Defendants, pursuant to the 10/24/19 Chapter 7 Voluntary Bankruptcy filing.

CONCLUSIONS AND ORDER

Plaintiff Kathy Lohr’s motion to compel the depositions of Defendants Julie Merrell and Eric Merrell and appoint a referee to preside over the depositions and request for sanctions is placed off-calendar. The case is stayed as to Defendants Julie Merrell and Eric Merrell, pursuant to their 10/24/19 Chapter 7 Voluntary Bankruptcy filing. All dates are vacated, including the Final Status Conference and trial dates. The parties are ordered to appear for a status conference regarding the status of the bankruptcy on January 15, 2020 at 8:30 am. If and when the stay is ultimately lifted, Plaintiff may contact the court to request that the instant motion be placed back on calendar.

Plaintiff to give notice and file proof of service of such.

DATED: October 31, 2019 ___________________________

Elaine Lu

Judge of the Superior Court