On 09/19/2017 KIMBERLY GOMEZ filed a Personal Injury - Motor Vehicle lawsuit against STAY GREEN INC. 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, ELAINE LU, DEBORAH L. CHRISTIAN and STEPHEN I. GOORVITCH. The case status is Disposed - Dismissed.
Disposed - Dismissed
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
BENNY C. OSORIO
DEBORAH L. CHRISTIAN
STEPHEN I. GOORVITCH
DOES 1-160 INCLUSIVE
HANG TUYEN QUANG
MORRISON - GOOD FAITH JAMES
SCHECHTER BRUCE LEE ESQ.
PARRIS LAW FIRM
FIRM PARRIS LAW
MAVES JASON LYLE
HIRSCHBERG MARK L. ESQ.
LAW OFFICE OF ERIC G. ANDERSON
SHRAIBATI MALEK H. ESQ.
HIRSCHBERG MARK LAWRENCE
SHRAIBATI MALEK HAMED
POIRIER RONALD ROBERT JR
4/26/2019: Order Approving Compromise of Disputed Claim or Pending Action or Disposition of Proceeds of Judgme - ORDER APPROVING COMPROMISE OF DISPUTED CLAIM OR PENDING ACTION OR DISPOSITION OF PROCEEDS OF JUDGM
9/19/2017: APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM
8/5/2020: Minute Order - MINUTE ORDER (COURT ORDER: PETITION TO APPROVE: COMPROMISE OF PENDING ACTIO...)
8/20/2020: Notice of Ruling
8/21/2020: Declaration - DECLARATION PROOF OF ANNUITY
10/26/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (ORDER TO SHOW CAUSE RE: DISMISSAL AND PROOF OF FUNDING OF ANN...) OF 10/26/2020
1/22/2020: Minute Order - MINUTE ORDER (COURT ORDER)
12/31/2019: Notice - NOTICE OF NON OPPOSITION TO COMPEL INITIAL RESPONSES FROM STAY GREEN TO REQUEST FOR ADMISSIONS, SET ONE
1/2/2020: Notice - NOTICE NOTICE OF DISASSOCIATION OF COUNSEL
10/18/2019: Ex Parte Application - EX PARTE APPLICATION PLAINTIFFS' EX PARTE APPLICATION TO CONTINUE TRIAL
10/18/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON EX PARTE APPLICATION TO CONTINUE TRIAL, FSC, AND M...) OF 10/18/2019
8/27/2019: Declaration - DECLARATION OF GENNA B. DELANY IN SUPPORT OF MOTION FOR DETERMINATION OF GOOD FAITH SETTLEMENT
1/10/2019: Minute Order - Minute Order (Legacy Event Type : OSC RE Dismissal for failure to serve the...)
2/5/2018: Declaration - Declaration regarding Proof of Annuity
4/20/2018: PROOF OF SERVICE SUMMONS -
4/30/2018: CIVIL DEPOSIT -
5/9/2018: REQUEST FOR DISMISSAL -
5/14/2018: CROSS COMPLAINT FOR INDEMNITY PARTIAL INDEMNITY DECLARATORY RELIEF AND PROPERTY DAMAGE
Docketat 08:30 AM in Department 32, Stephen I. Goorvitch, Presiding; Order to Show Cause Re: (Dismissal and proof of funding of annuity) - Not Held - Advanced and VacatedRead MoreRead Less
DocketOrder - Dismissal; Filed by CourtRead MoreRead Less
DocketOrder - Dismissal; Filed by CourtRead MoreRead Less
DocketCertificate of Mailing for ((Order to Show Cause Re: Dismissal and proof of funding of ann...) of 10/26/2020); Filed by ClerkRead MoreRead Less
DocketMinute Order ( (Order to Show Cause Re: Dismissal and proof of funding of ann...)); Filed by ClerkRead MoreRead Less
DocketRequest for Dismissal; Filed by Kimberly Gomez (Plaintiff); Nathaniel Gomez (Plaintiff)Read MoreRead Less
Docketat 08:30 AM in Department 32, Stephen I. Goorvitch, Presiding; (OSC RE Dismissal) - Not Held - Advanced and VacatedRead MoreRead Less
DocketRequest for Dismissal (- Not Entered); Filed by Kimberly Gomez (Plaintiff)Read MoreRead Less
DocketDeclaration (PROOF OF ANNUITY); Filed by Kimberly Gomez (Plaintiff)Read MoreRead Less
DocketNotice of Ruling; Filed by Nathaniel Gomez (Plaintiff)Read MoreRead Less
DocketMinute OrderRead MoreRead Less
DocketSECOND AMENDED** ORDER APPROVING:)COMPROMISE OF PENDING ACTION -MINORRead MoreRead Less
DocketPETITION TO APPROVE COMPROMISE OF DISPUTED CLAIM OR PENDING ACTION OR DISPOSITION OF PROCEEDS OF JUDGMENT FOR MINOR OR PERSON WITH A DISABILITYSRead MoreRead Less
DocketPetition to Approve Compromise of Disputed Claim; Filed by Plaintiff/PetitionerRead MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketSummons; Filed by PlaintiffRead MoreRead Less
DocketAPPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEMRead MoreRead Less
DocketComplaint; Filed by Kimberly Gomez (Plaintiff)Read MoreRead Less
DocketApplication ; Filed by Plaintiff/PetitionerRead MoreRead Less
DocketCOMPLAINT (1) WRONGFUL DEATH NEGLIGENCE; ETCRead MoreRead Less
Case Number: BC676609 Hearing Date: January 23, 2020 Dept: 32
kimberly gomez, et al.,
stay-Green, Inc., et al.,
Case No.: BC676609
Hearing Date: January 23, 2020
[TENTATIVE] order RE:
Plaintiffs’ MOTION FOR SANCTIONS
The Court posts this tentative in advance of the hearing. Any party who does not appear at the hearing (either in person or via court call) shall waive their right to be heard and shall submit to any decision the Court makes on this motion, even if it changes its tentative order following the hearing. The Court intends to hold a trial setting conference on January 23, 2020, at 1:30 p.m., in the event that Plaintiffs require additional time to locate and/or depose Guadalupe Rodriguez. Any party who does not appear (either in person or via court call) shall submit to any trial date selected by the Court.
Plaintiffs Kimberly Gomez and Nathaniel Gomez (“Plaintiffs”) were involved in a multi-vehicle collision, resulting in the death of Scott M. Gomez. Defendants Stay-Green, Inc. (“Stay-Green”) and Enrique Padilla (“Padilla”) (collectively, “Defendants”) were also involved in the collision. At the time of the collision, Padilla was driving a vehicle in the course and scope of his employment with Stay-Green. Guadalupe Rodriguez (“Rodriguez”), who was not named as a defendant, was Padilla’s passenger. Now, Plaintiffs seek issue and monetary sanctions against Defendants based upon their alleged conduct in connection with Rodriguez’s deposition. The motion is denied.
Code of Civil Procedure section 2023.010 authorizes the Court to impose sanctions for a misuse of the discovery process. The Court is authorized to impose monetary sanctions, issue sanctions and/or evidentiary sanctions for a violation, per Code of Civil Procedure section 2023.030.
A. Plaintiffs’ Allegations
Plaintiffs make the following allegations: Defendants’ counsel have maintained the position throughout the discovery process that they represent Guadalupe Rodriguez. (Declaration of Khail A. Parris, ¶ 1.) Defendants’ counsel stated that Plaintiffs’ counsel may not contact Guadalupe Rodriguez directly because she is represented. (Id., ¶ 2.) When asked for Rodriguez’s contact information, Padilla provided an address at which Rodriguez did not reside, and a telephone number that did not belong to Rodriguez. (Id., ¶ 3.) Plaintiffs also rely on a series of email correspondence, alleging that Defendants and their counsel are withholding contact information for Rodriguez.
B. Defendants’ Response
Defendants’ counsel, Ronald Poirier states the following: He took over the case in mid-September 2019 when the handling attorney retired. (Declaration of Ronald R. Poirier, ¶ 2.) There is no reference in the file to prior counsel having instructed Plaintiffs’ counsel not to serve a deposition subpoena on Rodriguez. (Ibid.) Nor is there any reference to not contacting Rodriguez directly. (Ibid.) The only reference in the file is that Rodriguez would be entitled to representation if the deposition went forward. (Ibid.) Poirier states that he never instructed Plaintiffs’ counsel not to contact Rodriguez. (Ibid.) Poirier states that Rodriguez left Stay-Green in April 2019, and his only conversation with Rodriguez came when Rodriguez called Stay-Green. (Id., ¶ 6.) Rodriguez refused to provide his contact information. (Ibid.)
As an initial matter, Plaintiffs seek an extreme sanction: An issue sanction preventing Defendants from challenging that “Padilla collided with [Scot] Gomez because he was driving erratically.” (Plaintiffs’ Memorandum of Points and Authorities, at p.7:9.) Even if Plaintiffs had satisfied their burden, this sanction would be too extreme. The purpose of sanctions is to remedy unfairness and return the aggrieved party to a level playing field. “Rather than decide the facts with respect to the intentional destruction of evidence and impose a nonmonetary sanction on a pretrial motion in circumstances not contemplated by the discovery statutes, we believe that in most cases of purported spoliation the facts should be decided and any appropriate inference should be made by the trier of fact after a full hearing at trial.” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1431.) Even if the Court agreed entirely with Plaintiffs’ arguments, the most the Court would do is impose an evidentiary sanction: A finding for the jury that, if called to testify, Rodriguez would testify that “Padilla collided with [Scot] Gomez because he was driving erratically.” But Plaintiffs did not request that sanction. Absent notice, the Court cannot impose an evidentiary sanction.
More important, although the Court is suspicious of Defendants and Defendants’ counsel’s conduct, the record does not support an issue (or evidentiary) sanction against Defendants. The gravamen of Plaintiffs’ motion is that Defendants’ counsel claimed to represent Rodriguez, which prevented Plaintiffs from contacting him or serving him with a deposition subpoena. To the extent Plaintiffs argue that they could not serve a deposition subpoena on Rodriguez while he supposedly was represented, Plaintiffs are incorrect. The prohibition on contact with represented persons does not apply to “communications otherwise authorized by law or a court order.” (Prof. Conduct, Rule 4.2, subd. (c)(2).) Code of Civil Procedure section 2025.280 requires personal service of a subpoena to compel a nonparty witness to attend a deposition. (Code Civ. Proc., § 2025.280, subd. (b).) Thus, Plaintiffs could have personally served a deposition subpoena on Rodriguez, regardless of whether Defendants’ counsel represented Rodriguez. Otherwise, a party could never compel the attendance of a nonparty witness at deposition, if the nonparty witness obtained representation. To the extent Defendants’ delayed Plaintiffs’ efforts to locate and subpoena Rodriguez, a trial continuance with a new discovery deadline would remedy that issue.
Plaintiffs also argue that Padilla provided false information concerning Rodriguez’s contact information. However, the Court cannot conclude on this record that Padilla intentionally lied. Padilla testified that Rodriguez is married to his sister, and Padilla provided his sister’s address and telephone number but also clarified, “I’m not sure whether the address is correct or not.” (Declaration of Jason L. Maves, Exh. K, at p. 68.) The mere fact that Padilla and his sister are related does not necessarily mean he has updated contact information. Regardless, Plaintiffs may hire investigators to locate witnesses, so the mere fact that a witness provided inaccurate information does not compel an issue sanction.
Nor can the Court conclude that Stay-Green or Defendants’ counsel withheld contact information for Rodriguez. Poirier states that he does not have Rodriguez’s contact information. While the Court suspects that Stay-Green has a means of contacting Rodriguez, since Rodriguez knew to call Stay-Green to speak with Poirier, the Court cannot impose sanctions on this basis. Plaintiffs’ counsel did not file copies of any interrogatories served on Stay-Green, or any transcripts of depositions of Stay-Green’s person most knowledgeable, in which Stay-Green would have been required to provide Rodriguez’s contact information. Therefore, even if the Court’s suspicions are actionable, there is no evidence that Stay-Green failed to submit to an authorized discovery method, as required under Code of Civil Procedure section 2023.010(d).
The Court cannot conclude that Defendants’ counsel falsely claimed to represent Rodriguez. Plaintiffs’ counsel’s declaration is not sufficiently rebutted because Defendants rely exclusively on a declaration from Poirier, who assumed responsibility for the case in September 2019. Poirier has no knowledge of what his predecessor said, and Defendants do not provide a declaration from his predecessor. The mere absence of notations in the file concerning alleged unethical conduct is not surprising or dispositive. Nevertheless, Plaintiffs’ counsel’s declaration is not specific enough to support such a finding as it lacks the name(s) of the attorney(s) who made the representations, as well as the approximate time frame and context of the conversations. In order to impose sanctions sought by Plaintiffs, the Court requires a detailed factual record.
Finally, Plaintiffs have not established that they exhausted all means of locating Rodriguez. To the extent Plaintiffs argue that Defendants “hid” Rodriguez from them, prejudicing them to the point that sanctions are appropriate, they must establish that they have no other means of locating Rodriguez.
Conclusion and Order
The Court has suspicions concerning the conduct of Defendants and Defendants’ counsel. The record suggests that Defendants and/or their counsel are responsible for delaying Plaintiffs’ efforts to locate and depose Rodriguez in light of Plaintiffs’ counsel’s unrebutted declaration. Nevertheless, the Court is forced to give Defendants and their counsel the benefit of the doubt, as the record is not sufficiently detailed to support sanctions in this case. This order is without prejudice to Plaintiffs re-filing this motion seeking an evidentiary sanction concerning Rodriguez’s testimony rather than an issue sanction and providing a more detailed factual record in the event they cannot locate and/or depose Rodriguez. Plaintiffs shall provide notice and file proof of such with the Court.
DATED: January 23, 2020 ___________________________
Stephen I. Goorvitch
Judge of the Superior Court
Case Number: BC676609 Hearing Date: January 08, 2020 Dept: 5
KIMBERLY GOMEZ, et al.,
STAY-GREEN INC., et al.,
Case No.: BC676609
Hearing Date: January 8, 2020
[Tentative] order RE:
PLAINTIFFS’ MOTIONS TO COMPEL DISCOVERY RESPONSES FROM DEFENDANTS
Plaintiffs Kimberly Gomez and Nathaniel Gomez move to compel responses from Defendants Stay-Green Inc. and Enrique Padilla (collectively “Defendants”) to Form Interrogatories, Set Two (“FROGs”). Plaintiffs also move to deem the Requests for Admissions, Set One (“RFAs”) to have been admitted.
Plaintiffs served the FROGs and RFAs on Defendants on July 26, 2019. (Maves Decl., Exh. A.) The responses were due on September 14, 2019. (Id., ¶ 2.) On October 31, 2019, Plaintiffs’ counsel emailed Defendants’ counsel to inquire about the outstanding discovery responses. (Id., Exh. B & ¶ 4.) Defendants’ counsel responded on November 1, 2019 advising that he would investigate the issue. (Id., Exh. B & ¶ 4.) As of November 22, 2019, no responses had been served on Plaintiffs. (Id., ¶ 5.) Defendants have not opposed the motion, and there is nothing in the record to suggest that they have complied with their discovery obligations. Therefore, the motion to compel responses to the FROGs is granted. Similarly, Plaintiffs’ motion to deem the RFAs to have been admitted is granted pursuant to Code of Civil Procedure section 2033.280.
Plaintiffs seek sanctions against Defendants and their counsel-of-record. The Court finds that the failure to respond to discovery is an abuse of the discovery process warranting sanctions. The Court finds that these motions were necessary, as Plaintiffs’ counsel made reasonable efforts to resolve the issues without motions practice. The Court finds that sanctions are mandatory under these circumstances. Therefore, the Court orders Defendants and the Law Office of Christian B. Green and Ron Poirier, Esq., jointly and severally, to pay sanctions in the amount of $2,740 based upon ten hours of attorney time at a reasonable billing rate of $250 per hour, plus four filing fees of $60 each.
CONCLUSION AND ORDER
The Court grants Plaintiffs’ motion to compel responses to the FROGs. Defendants shall provide responses, without objections, within thirty (30) days of notice of this order.
The Court grants Plaintiffs’ motion to deem the RFAs to have been admitted.
The Court orders Defendants and the Law Office of Christian B. Green and Ron Poirier, Esq., jointly and severally, to pay sanctions in the amount of $2,740 within thirty (30) days of notice of this order.
Plaintiffs shall provide notice and file proof of such with the Court.
DATED: January 8, 2020 ___________________________
Hon. Stephen I. Goorvitch
Judge of the Superior Court