On 01/24/2017 LOUIE DUBON filed a Personal Injury - Motor Vehicle lawsuit against CHARLES WILLIAM BRADFORD. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is JON R. TAKASUGI. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
JON R. TAKASUGI
BRADFORD CHARLES WILLIAM
LAW OFFICES OF JOHN C. YE APLC
SCHMECKPEPER KATHY ANNE ESQ.
2/23/2018: MOTION FOR ORDER COMPELLING RESPONSES TO FORM INTERROGATORIES
2/23/2018: NOTICE OF MOTION FOR ORDER COMPELLING RESPONSES TO SPECIALLY PREPARED INTERROGATORIES
2/23/2018: MOTION FOR COMPELLING REPONSES TO DEMAND FOR INSPECTION AND PRODUCTION OF DOCUMENTS
3/12/2018: PLAINTIFF, LOUIE DUBON'S OPPOSITION TO DEFENDANT'S MOTION TO COMPEL RESPONSES TO SPECIAL INTERROGATORIES, FORM INTERROGATORIES, AND DEMAND FOR PRODUCTION OF DOCUMENTS AND THINGS; DECLARATION OF THANE
3/21/2018: NOTICE THAT DEFENDANT'S MOTIONS FOR ORDER: (1) COMPELLING RESPONSES TO FORM INTERROGATORIES AND FOR AN ORDER IMPOSING MONETARY SANCTIONS; ETC.
6/11/2018: ORDER AND STIPULATION TO CONTINUE TRIAL
10/11/2018: Other -
11/28/2018: Ex Parte Application
12/3/2018: Notice of Ruling
3/1/2019: Ex Parte Application
3/1/2019: Minute Order
5/3/2019: Motion for Order
1/24/2017: COMPLAINT?PERSONAL INJURY, PROPERTY DAMAGE, WRONGFUL DEATH
8/30/2017: ANSWER TO COMPLAINT ON BEHALF OF DEFENDANT CHARLES WILLIAM BRADFORD; DEMAND FOR TRIAL BY JURY
9/1/2017: CIVIL DEPOSIT
9/13/2017: NOTICE OF CHANGE OF ADDRESS
Motion for Order (To Reinstate Jury Trial pursuant CCP Section 631(g)); Filed by Dubon. Louie (Plaintiff)Read MoreRead Less
at 08:30 AM in Department 3, Jon R. Takasugi, Presiding; Jury Trial - Not Held - Continued - Party's MotionRead MoreRead Less
at 10:00 AM in Department 3, Jon R. Takasugi, Presiding; Final Status Conference - Not Held - Continued - Party's MotionRead MoreRead Less
at 08:30 AM in Department 3, Jon R. Takasugi, Presiding; Hearing on Ex Parte Application (to continue final status conference and trial) - Held - Motion GrantedRead MoreRead Less
Minute Order ( (Hearing on Ex Parte Application to continue final status conf...)); Filed by ClerkRead MoreRead Less
Ex Parte Application (TO CONTINUE FINAL STATUS CONFERENCE AND TRIAL); Filed by Dubon. Louie (Plaintiff)Read MoreRead Less
Order (re: Plaintiff's Ex Parte Application to Continue Final Status Conference and Trial); Filed by Dubon. Louie (Plaintiff)Read MoreRead Less
at 08:30 AM in Department 3, Jon R. Takasugi, Presiding; Jury Trial - Not Held - Advanced and Continued - by CourtRead MoreRead Less
at 10:00 AM in Department 3, Jon R. Takasugi, Presiding; Final Status Conference - Not Held - Advanced and Continued - by CourtRead MoreRead Less
Notice of Ruling; Filed by Charles William Bradford (Defendant)Read MoreRead Less
NOTICE OF MOTION FOR ORDER COMPELLING RESPONSES TO SPECIALLY PREPARED INTERROGATORIESRead MoreRead Less
Notice of Change of Address or Other Contact Information; Filed by Dubon. Louie (Plaintiff)Read MoreRead Less
NOTICE OF CHANGE OF ADDRESSRead MoreRead Less
Miscellaneous-Other; Filed by Defendant/RespondentRead MoreRead Less
CIVIL DEPOSITRead MoreRead Less
ANSWER TO COMPLAINT ON BEHALF OF DEFENDANT CHARLES WILLIAM BRADFORD; DEMAND FOR TRIAL BY JURYRead MoreRead Less
Answer; Filed by Charles William Bradford (Defendant)Read MoreRead Less
Complaint; Filed by Dubon. Louie (Plaintiff)Read MoreRead Less
COMPLAINT PERSONAL INJURY, PROPERTY DAMAGE, WRONGFUL DEATHRead MoreRead Less
SUMMONSRead MoreRead Less
Case Number: BC648034 Hearing Date: September 16, 2020 Dept: 31
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
CHARLES WILLIAM BRADFORD, ET AL.,
CASE NO: BC648034
[TENTATIVE] (1) ORDER DENYING DEFENDANT’S MOTION FOR TERMINATING SANCTIONS
(2) ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT
September 16, 2019
Plaintiff, Louie Dubon filed this action against Defendant, Charles William Bradford for damages arising out of an automobile vs. pedestrian accident.
At this time, Defendant moves for terminating sanctions against Plaintiff based on Plaintiff’s failure to appear for a court ordered orthopedic examination.
In addition, Plaintiff seeks leave to file a First Amended Complaint to request punitive damages against Defendant.
Motion for Terminating Sanctions
Defendant asserts the court ordered Plaintiff to appear for an orthopedic exam set for 10/25/19, but that Plaintiff failed to appear for the exam and a subsequent rescheduled exam. (Minute Order 10/9/19.) Defendant moves for terminating sanctions, or in the alternative evidentiary sanctions, against Plaintiff for Plaintiff’s continued refusal to obey the court’s 10/9/19 Order.
In opposition, Plaintiff contends that while it is true he would have arrived an hour late for the first scheduled exam and 36 minutes late for the second rescheduled exam, Plaintiff was and still is in criminal custody and Defendant refused to accommodate the delays. Plaintiff provides he has offered to rebook the exam for a third time, but that Defendant has refused. Further, Plaintiff argues Defendant fails to cite any authority showing terminating sanctions are appropriate where a party fails to appear for a court ordered examination.
Code of Civil Procedure § 2023.030 gives the court the discretion to impose sanctions against anyone engaging in a misuse of the discovery process. A court may impose terminating sanctions by striking pleadings of the party engaged in misuse of discovery or entering default judgment. (Code Civ. Proc., § 2023.030(d).) A violation of a discovery order is sufficient for the imposition of terminating sanctions. (Collison & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1620.) Terminating sanctions are appropriate when a party persists in disobeying the court's orders. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 795-796.)
A terminating sanction is a "drastic measure which should be employed with caution." (Deyo, 84 Cal.App.3d at 793.) "A decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction." (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.) While the court has discretion to impose terminating sanctions, these sanctions "should be appropriate to the dereliction and should not exceed that which is required to protect the interests of the party entitled to but denied discovery." (Deyo, 84 Cal.App.3d at 793.) "[A] court is empowered to apply the ultimate sanction against a litigant who persists in the outright refusal to comply with his discovery obligations." (Ibid.) Discovery sanctions are not to be imposed for punishment, but instead are used to encourage fair disclosure of discovery to prevent unfairness resulting for the lack of information. (See Midwife v. Bernal (1988) 203 Cal.App.3d 57, 64 [superseded on other grounds as stated in Kohan v. Cohan (1991) 229 Cal.App.3d 967, 971].)
Here, Defendant filed his motion on 3/4/20, when trial in this action was set for 4/30/20. However, based on current conditions, including, but not limited to, the spread of COVID-19, the 4/30/20 trial date was vacated. (Minute Order 3/24/20.) A Trial Setting Conference is set for the same time as these hearings on 9/16/20.
Given that trial is not currently set in this matter, the court finds terminating sanctions unduly harsh and unwarranted at this time. Plaintiff’s counsel’s declarations provide Plaintiff attempted to attend the scheduled examinations but was delayed due to traffic for the first exam and a criminal hearing scheduled for the same day as the second exam. In the absence of a showing of prejudice, the court finds it appropriate to again order Plaintiff to appear for a physical examination with Dr. Gupta.
Counsel are ordered to meet and confer to agree on a date and time for the examination. If Plaintiff does not participate in the meet and confer in good faith, Defendant may unilaterally set the examination with at least ten days’ notice (extended per Code if by other than personal service).
However, the court finds monetary sanctions for fees and costs Defendant incurred for the first two exams to be reasonable. The court awards Defendant two no-show fees of $800 each, two hours of attorney’s fees at $143.75 per hour, and the $61.65 motion filing fee. Further, while Defendant requests a $94 CourtCall fee, the court notes the cost to appear remotely through LACourtConnect is $15. Defendant is thus awarded the $15 LaCourtConnect fee. Monetary sanctions are imposed against Plaintiff and Plaintiff’s attorney of record, jointly and severally; they are ordered to pay sanctions to Defendant, by and through counsel of record, in the total amount of $1,964.15, within twenty days.
Defendant is ordered to give notice.
Motion for Leave to File First Amended Complaint
Plaintiff seeks to file a First Amended Complaint (“FAC”) to add a request punitive damages and to add an exemplary damages attachment. Plaintiff contends the FAC is necessitated by facts uncovered in discovery. In particular, Plaintiff contends that after taking Defendant’s and witness Lisanne Desrocher’s deposition on 4/1/19 and 2/27/20, respectively, Plaintiff uncovered evidence that Defendant attempted to hinder reporting of this incident to the police. Further, Plaintiff argues the proposed amendments will not prejudice Defendant.
In opposition, Defendant contends Plaintiff was aware of the information giving rise to Plaintiff’s motion for one and half years before filing the complaint. Moreover, Defendant avers the purported new information does not support a claim for punitive or exemplary damages. Finally, Defendant contends he will be prejudiced by allowing the new claims because it will require further substantive discovery, while Plaintiff has offered no explanation for the delay.
Plaintiff, in reply, does not dispute being aware of the relevant information in 2015 and 2018, but asserts Plaintiff confirmed the information on 2/27/20, and shortly filed this motion thereafter on 3/5/20. Additionally, Plaintiff contends that Defendant has failed to disprove there is evidence of malice, fraud or oppression against him.
CCP § 473(a)(1) provides, in relevant part: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.”
“This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.) Ordinarily, the court will not consider the validity of the proposed amended pleading in ruling on a motion for leave since grounds for a demurrer or motion to strike are premature. The court, however, does have discretion to deny leave to amend where a proposed amendment fails to state a valid cause of action as a matter of law and the defect cannot be cured by further amendment. (See California Casualty General Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 281, overruled on other grounds by Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390.)
Under CRC Rule 3.1324(a), a motion to amend a pleading shall (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.
Under CRC Rule 3.1324(b), a separate declaration must accompany the motion and must specify (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earlier.
Even if a good amendment is proposed in proper form, a long, unwarranted and unexcused delay in presenting it may be a good reason for denial. In most cases, the factors for timeliness are: (1) lack of diligence in discovering the facts or in offering the amendment after knowledge of them; and (2) the effect of the delay on the adverse party. If the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the judge has discretion to deny leave to amend. (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.) Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, or added costs of preparation such as an increased burden of discovery. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488.)
In this case, Plaintiff does not dispute being aware of Ma. Desrocher’s testimony since 5/26/15, when Plaintiff’s prior counsel conducted a phone interview of the witness. Plaintiff, thus, was aware of the subject information for more than five years after the incident and more than three years after filing this action. Furthermore, Plaintiff does not deny that it produced the subject phone interview in response to a discovery request on 3/9/18.
However, Defendant must show both unreasonable delay and prejudice to warrant denying Plaintiff’s motion for leave to amend. Although Defendant shows Plaintiff unreasonably delayed in seeking the amendment, the only prejudice Defendant identifies is that the new claims will alter the complexity of the case, add a new field of inquiry, and that Plaintiff will be required to conduct further substantive discovery. However, the proposed amendment is based on the same underlying facts involving the incident between Plaintiff and Defendant, such that any all discovery is directly related to Plaintiff’s claim that Defendant struck Plaintiff with his vehicle. Further, Defendant has been, or should have been, aware of Ms. Desrocher’s testimony since 3/9/18 when her testimony was produced to Defendant in response to discovery.
Furthermore, the court cannot say as a matter of law that the proposed amendments asserting Defendant failed to willfully render aid to Plaintiff, who was bleeding from his head after being thrown into the air and landing on his head, and that Defendant deliberately attempted to escape the consequences of his actions by trying to intimidate a witness are insufficient to support a prayer for punitive damages. Moreover, while Defendant contends the proposed amendments are contrary to Plaintiff’s deposition testimony concerning the incident, the testimony cited by Defendant does not concern Defendant’s purported failure to render aid while Plaintiff was bleeding from his head and attempt to intimidate a witness.
Accordingly, Plaintiff’s motion for leave to amend is granted.
Plaintiff is ordered to give notice.
Parties who intend to submit on this tentative must send an email to the court at email@example.com indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.
Dated this 16th day of September, 2020
Hon. Thomas D. Long
Judge of the Superior Court
Case Number: BC648034 Hearing Date: November 12, 2019 Dept: 3
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
CHARLES WILLIAM BRADFORD, ET AL.,
CASE NO: BC648034
[TENTATIVE] ORDER GRANTING DEFENDANT’S MOTION TO COMPEL A MENTAL EXAMINATION
November 12, 2019
1. Background Facts
Plaintiff, Louie Dubon filed this action against Defendant, Charles William Bradford for damages arising out of an automobile v. pedestrian accident. In response to form interrogatories, Plaintiff identified injuries to his right arm, loss of strength to right arm, right hand, right leg, right cheek, loss of front teeth, abdomen, and hips, high blood pressure, vertigo, loss of sexual capacity, loss of eyesight, hearing loss, memory loss, loss of balance, depression, anxiety, headaches, head trauma, contusions, fluid in the brain, and potential traumatic brain injury.
2. Prior Hearing
The Court was originally scheduled to hear Defendant’s motion to compel a neuropsychological examination on 10/09/19. At the conclusion of the hearing, the Court continued the matter to require (a) the parties to meet and confer further in an attempt to determine whether they can work out the terms of a stipulation that satisfies §2032.320 and (b) if the parties were unable to agree to the terms of a stipulation, to meet and confer concerning the scope of the proposed examination and the tests to be performed.
a. Garden Variety Emotional Distress Claim
Plaintiff continues to insist his traumatic brain injury and subsequent depression is nothing more than garden variety emotional distress that stems from the accident that forms the basis of the lawsuit. Plaintiff has not offered to enter into any stipulation in this regard. Notably, a traumatic brain injury is an injury that directly implicates one’s neuropsychological condition, and depression stemming from such injury is not normal emotional distress attendant to an automobile accident. The Court therefore finds Plaintiff must sit for a neuropsychological examination at this time.
b. Scope of Examination
It does not appear the parties met and conferred concerning the scope of the examination to be performed. Dr. Hinkin must limit his examination to the scope and manner set forth in the original notice of motion, dated 9/13/19, page 2, line 9 through page 3, line 23.
The motion sought to compel the examination on 10/19/19. 10/19/19 has passed. Counsel are ordered to meet and confer to agree on a date and time for the examination. If Plaintiff does not participate in the meet and confer in good faith, Defendant may unilaterally set the examination with at least ten days’ notice (extended per Code if by other than personal service).
The motion to compel is granted. Defendant is ordered to give notice.
Parties who intend to submit on this tentative must send an email to the court at firstname.lastname@example.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.
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