Tentative Rulings

Case Number: EC066975    Hearing Date: January 03, 2020    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

Background

1. Allegations

This action involves the property located at 721 Colman Street, Altadena, California 91001 (“Hastings Property”) owned by Plaintiff Lisa Hastings (“Plaintiff”), and property located at 728 Colman Street, Altadena, CA 91101 (“Kevorkian Property”) owned by Defendants Abraham Kevorkian (“Kevorkian”) and Nancy Odesho (“Odesho”). Plaintiff alleges that the Kevorkian Property has always benefited, as the dominate tenement, over the Hastings Property with a 30-foot wide recorded easement.

Plaintiff also alleges that the Hastings Property receives a benefit of a 34-foot Road and Utility Easement for the northern side of the Kevorkian Property. However, Plaintiff alleges that Kevorkian and Odesho persuaded Fidelity National Title Insurance Company (“Fidelity”) to improperly record a grant deed, unilaterally granting themselves the benefits of the Road and Utility Easement.

Plaintiff filed this lawsuit against Defendants to enjoin them from using the easement for anything other than ingress and egress, in view of Defendants’ history of parking vehicles in the easement area. The second amended complaint (“SAC”), filed May 14, 2018, alleges causes of action for: (1) quiet title against Kevorkian and Odesho; (2) slander of title against Kevorkian, Odesho, and Fidelity National Title Insurance Company; (3) permanent injunction to compel removal of encroachment against Kevorkian and Odesho; (4) ejectment against Kevorkian and Odesho; and (5) cancellation of written instrument against Kevorkian and Odesho.

On March 26, 2019, Plaintiff filed a Supplemental Complaint for: (1) reformation of written instrument; (2) partial cancellation of written instrument; (3) cancellation of written instrument; (4) declaratory relief; (5) slander of title; and (6) permanent injunction. Plaintiff’s Supplemental Complaint involves additional events that occurred after the filing of the SAC, including Defendants taking out a loan on the Kevorkian Property secured by a deed of trust in favor of the lender New Penn Financial, LLC, which includes an allegedly false description based upon the self-granted easement (“New Penn Deed”) and a survey Defendants commissioned from Caliland Engineering, Inc. and Yoon Lai (“Caliland Survey”) which purportedly confirms that the Kevorkian Property is benefited by a 34-foot Road and Utility Easement.

1. Relevant Background and Motion on Calendar

The following background facts are relevant to the motion. On October 18, 2019, Abraham Kevorkian filed 2 motions to compel further responses to SROG, set two, and RFA, set two, in Case No. EC066975. On October 21, 2019, he filed a motion to compel further responses for RPD, set two. Plaintiffs filed oppositions on November 15, 2019. On November 25, 2019, Abraham Kevorkian filed reply briefs to the motions. On November 27, 2019, the Court held a hearing on the discovery matters. With regard to the 3 motions to compel further, the Court denied the motions on the basis of untimeliness. After oral argument from the parties, the Court imposed sanctions in the amount of $5,140.00 against Abraham Kevorkian payable to Plaintiff and Plaintiff’s counsel, Guy Jamison, within 30 days. (The Court also notes that on calendar that same day was Abraham Kevorkian’s motion for an order deeming the truth of facts and genuineness of documents in Case No. EC064909.)

At issue now is Abraham Kevorkian’s motion for reconsideration of the Court’s prior November 27, 2019 order, whereby Abraham Kevorkian was ordered pay sanctions to Plaintiff and counsel. He now moves for relief under CCP §1008(a). The motion was filed on December 9, 2019. Plaintiff filed an opposition on December 19, 2019. Abraham Kevorkian filed a reply on December 27, 2019.

LEGAL STANDARD

CCP §1008(a) states: “When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (CCP §1008(a).)

DISCUSSIOn

Abraham Kevorkian moves for reconsideration of the Court’s November 27, 2019 order, imposing sanctions against him in connection with the discovery motions.

The Court has reviewed Abraham Kevorkian’s moving papers and finds that he has not provided any showing that there are new or different facts, circumstances, or law such that the motion for reconsideration should be granted. This alone is sufficient for the Court to deny the motion.

The Court addresses the other arguments raised by Abraham Kevorkian.

First, Abraham Kevorkian argues that the Court’s November 27, 2019 tentative ruling indicated nowhere that the Court would sanctions him for bad faith or for filing a frivolous motion. However, sanctions were not imposed against him pursuant to CCP §128.5 or 128.7. Rather, sanctions were granted pursuant to Plaintiff’s request in her opposition briefs to Abraham Kevorkian’s discovery motions. Plaintiff sought sanctions in the amounts of: (1) $2,392.50 in connection with the SROG motion pursuant to CCP §2030.300(d); (2) $5,142.50 in connection with the RPD pursuant to CCP §2031.310(h); and (3) $3,540.00 in connection with the RFA motion pursuant to CCP §2033.290(d) (sanctions in connection with motions to compel further re RFAs), CCP §2023.010 (misuse of the discovery process), and CRC Rule 2.30 (sanctions for failure to comply with rules).

In Plaintiff’s opposition to the prior RFA motion, she stated that if sanctions were not imposed pursuant to her requests, “a request for sanctions pursuant to Code of Civil Procedure § 125.8 may be coming.” (See 11/15/19 Pl.’s Opp. re RFA Motion at p.16 [italics added].) In other words, Plaintiff was not seeking sanctions pursuant to CCP §125.8 at the time of the oppositions to the discovery motions, but she was only informing the Court and Abraham Kevorkian that a section 128.5 motion may be forthcoming. Thus, any arguments by Abraham Kevorkian that the Court imposed sanctions against him for bad faith or filing frivolous (or excessively long) motions pursuant to sections 128.5 or 128.7 are not at issue, as neither sections 128.5 and 128.7 were the basis for imposing monetary sanctions against him on November 27, 2019. This argument does not constitute new or different facts, circumstances, or law that would warrant granting this motion for reconsideration.

Second, Abraham Kevorkian argues that the Court admitted at the hearing that it did not read his reply briefs. According to CCP §1005(b), all moving and supporting papers shall be filed at least 16 court days before the hearing; all opposing papers shall be filed with the court and served at least 9 court days before the hearing; and all reply papers at least 5 court days before the hearing. Pursuant to CRC, Rule 3.1300(d), the court may in its discretion refuse to consider a late filed paper.

Whether the Court did or did not read Abraham Kevorkian’s reply briefs to the prior discovery motions, the Court was within its discretion to refuse to consider the reply briefs because they were filed on November 25, 2019. For a hearing date of November 27, 2019, Abraham Kevorkian was required to file reply briefs by November 20, 2019 (i.e., 5 court days before the hearing). As he failed to do so, the Court had discretion to refuse to consider the late-filed reply briefs. Thus, this argument too does not constitute a new or different fact, circumstance, or law to warrant reconsideration.

Finally, the fact that the Court’s tentative order for the November 27, 2019 hearing date did not address sanctions does not mean that sanctions would not or could not be imposed. Abraham Kevorkian had notice of Plaintiff’s request for sanctions in her opposition briefs to the discovery motions and nothing prevented the Court from considering the issue of sanctions at the hearing during oral arguments. In addition, a tentative ruling is not the final ruling of the Court—rather, it provides the parties with an indication of the Court’s tentative decision on the matter, which the Court may ultimately accept as the final ruling, modify, or choose not to adopt altogether. The Court was not required to issue a tentative ruling but did so as a courtesy to the litigants. Thus, arguments that Abraham Kevorkian lacked notice of sanctions on this ground also lacks merit.

For the reasons stated above, the Court does not find that Abraham Kevorkian has established that there are new or different facts, circumstances, or law to warrant granting reconsideration of the Court’s November 27, 2019 order on the issue of discovery sanctions.

Conclusion and Order

Abraham Kevorkian’s motion for reconsideration of the Court’s November 27, 2019 order is denied.

Plaintiff is ordered to provide notice of this ruling.

Case Number: EC066975    Hearing Date: November 27, 2019    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

Background

1. Allegations

This action involves the property located at 721 Colman Street, Altadena, California 91001 (“Hastings Property”) owned by Plaintiff Lisa Hastings (“Plaintiff”), and property located at 728 Colman Street, Altadena, CA 91101 (“Kevorkian Property”) owned by Defendants Abraham Kevorkian (“Kevorkian”) and Nancy Odesho (“Odesho”). Plaintiff alleges that the Kevorkian Property has always benefited, as the dominate tenement, over the Hastings Property with a 30-foot wide recorded easement.

Plaintiff also alleges that the Hastings Property receives a benefit of a 34-foot Road and Utility Easement for the northern side of the Kevorkian Property. However, Plaintiff alleges that Kevorkian and Odesho persuaded Fidelity National Title Insurance Company (“Fidelity”) to improperly record a grant deed, unilaterally granting themselves the benefits of the Road and Utility Easement.

Plaintiff filed this lawsuit against Defendants to enjoin them from using the easement for anything other than ingress and egress, in view of Defendants’ history of parking vehicles in the easement area. The second amended complaint (“SAC”), filed May 14, 2018, alleges causes of action for: (1) quiet title against Kevorkian and Odesho; (2) slander of title against Kevorkian, Odesho, and Fidelity National Title Insurance Company; (3) permanent injunction to compel removal of encroachment against Kevorkian and Odesho; (4) ejectment against Kevorkian and Odesho; and (5) cancellation of written instrument against Kevorkian and Odesho.

On March 26, 2019, Plaintiff filed a Supplemental Complaint for: (1) reformation of written instrument; (2) partial cancellation of written instrument; (3) cancellation of written instrument; (4) declaratory relief; (5) slander of title; and (6) permanent injunction. Plaintiff’s Supplemental Complaint involves additional events that occurred after the filing of the SAC, including Defendants taking out a loan on the Kevorkian Property secured by a deed of trust in favor of the lender New Penn Financial, LLC, which includes an allegedly false description based upon the self-granted easement (“New Penn Deed”) and a survey Defendants commissioned from Caliland Engineering, Inc. and Yoon Lai (“Caliland Survey”) which purportedly confirms that the Kevorkian Property is benefited by a 34-foot Road and Utility Easement.

1. Motions on Calendar

On October 18, 2019, Abraham Kevorkian filed two motions to compel further responses to special interrogatories, set two (“SROG”) and requests for admissions, set two (“RFA”) in Case No. EC066975. On October 21, 2019, he filed a motion to compel further responses to requests for production of documents, set two (“RPD”). Plaintiff filed opposition briefs on November 15, 2019.

On October 28, 2019, Abraham Kevorkian filed a motion for order deeming the truth of facts and genuineness of documents in Case No. EC064909. On November 18, 2019, Plaintiff filed an opposition brief to this motion but filed it in Case No. EC066975.

DISCUSSIOn

1. Discovery Cut Off Period

CCP §2024.020(a) states: “Except as otherwise provided in this chapter, any party shall be entitled as a y, and to

A non-jury trial is set for December 9, 2019.

Abraham Kevorkian’s discovery motions are currently set for November 27, 2019.

On October 31, 2019, Judge C. Edward Simpson denied Abraham Kevorkian’s ex parte application to continue the trial date and trial-related deadlines. On the Court’s own motion, Judge Simpson advanced the hearing dates of the 3 motions to compel further filed in Case No. EC066975 and the 1 motion to deem RFA admitted in Case No. EC064909, originally set for January 3, 2020 and December 6, 2019 respectively, to November 27, 2019.

Despite advancing the hearing dates on the 4 discovery motions, the motions are still untimely as they violate the discovery cut-off period. As stated in CCP §2024.020(a), discovery motions must be heard on or before the 15^th day prior to trial. At least 15 days before the December 9, 2019 trial date would be November 22, 2019 (which accounts for the weekend). Thus, to be timely, Abraham Kevorkian should have reserved earlier hearing dates by or before November 22, 2019, or moved ex parte to advance the hearing dates on the motions so that they complied with the procedural deadline requirements of CCP §2024.020.

Thus, the motions may be denied on this basis.

1. Timeliness of Motions to Compel Further Responses in Case No. EC066975

Motions to compel further responses must be brought within 45 days of receiving the verified or supplemental verified responses, or as otherwise agreed upon between the parties in writing. (CCP §§2030.300(c), 2031.310(c), 2033.290(c).) An additional 5 days is added where the interrogatory responses are served by mail. (CCP §1013.) The 45-day limitation to move to compel further responses as to interrogatories and document requests is jurisdictional, and courts are without authority to rule on untimely motions to compel except just to deny them. (Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal.App.3d 681, 685.) The deadline cannot be circumvented by propounding the same discovery again. (Prof. Career Colleges etc. v. Superior Court (1989) 207 Cal.App.3d 490, 492.)

Plaintiff served her SROG, RPD, and RFA responses/objections on Abraham Kevorkian on August 26, 2019 by mail. (Kevorkian Decl. re SROG, Ex. B; Kevorkian Decl. re RPD, Ex. B; Kevorkian Decl. re RFA, Ex. B.)

These motions were filed on October 18, 2019.

To be within the jurisdictional time period, the motions to compel further should have latest been filed by October 15, 2019. There is also no indication that the parties agreed in writing to extend the time period to file the motions.[1]

As such, the motions to compel further responses were not timely filed. This failure to comply with the jurisdictional time limit is sufficient to deny the 3 motions.

1. Motion for Order Deeming Truth of Facts and Genuineness in Case No. EC064909

As pointed out by Plaintiff in the opposition brief, the motion is moot because Plaintiff served her responses regarding the RFA on October 14, 2019 and verifications were served on October 29, 2019. Nevertheless, in view of the rapidly approaching trial, the Court reviewed the responses, and finds that they do not directly address the requests. These are simple requests regarding the genuineness of documents or other disputed issues and can be responded to with straightforward admissions or denials. The Court orders Plaintiff to respond within five days with straightforward admissions or denials.

Conclusion and Order

With regard to the 3 motions to compel further responses filed in Case No. EC066975, the motions are denied on the basis of untimeliness pursuant to CCP §§2030.300(c), 2031.310(c), and 2033.290(c). The motion regarding the RFAs in Case No. EC064909 is granted.

Plaintiff is ordered to provide notice of this ruling.