This case was last updated from Los Angeles County Superior Courts on 07/18/2021 at 08:44:14 (UTC).

MAIRA E. DUARTE JUAREZ VS DAVID S. WARD

Case Summary

On 06/25/2020 MAIRA E DUARTE JUAREZ filed a Tax - Other Tax lawsuit against DAVID S WARD. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are SAMANTHA JESSNER and DAVID J. COWAN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******2070

  • Filing Date:

    06/25/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Tax - Other Tax

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

SAMANTHA JESSNER

DAVID J. COWAN

 

Party Details

Plaintiffs, Appellants and Respondents

DUARTE JUAREZ MAIRA E.

THE ACADEMY OF MOTION PICTURE ARTS AND SCIENCES

Plaintiff and Appellant

DUARTE JUAREZ MAIRA E.

Defendant

WARD DAVID S.

Not Classified By Court, Plaintiff and Respondent

THE ACADEMY OF MOTION PICTURE ARTS AND SCIENCES

Attorney/Law Firm Details

Plaintiff and Appellant Attorneys

HERMANSEN KEVIN

RAMM BENJAMIN G.

TAYBACK CHRISTOPHER

Defendant Attorney

FRIEDMAN IRA M.

Plaintiff and Not Classified By Court Attorney

TAYBACK CHRISTOPHER

 

Court Documents

Minute Order - MINUTE ORDER (NUNC PRO TUNC ORDER)

7/15/2021: Minute Order - MINUTE ORDER (NUNC PRO TUNC ORDER)

Declaration - DECLARATION OF SAGE R. VANDEN HEUVEL IN SUPPORT OF THE ACADEMY OF MOTION PICTURE ARTS AND SCIENCES OPPOSITION TO PLAINTIFFS MOTION FOR LEAVE TO FILE CROSS-COMPLAINT

7/8/2021: Declaration - DECLARATION OF SAGE R. VANDEN HEUVEL IN SUPPORT OF THE ACADEMY OF MOTION PICTURE ARTS AND SCIENCES OPPOSITION TO PLAINTIFFS MOTION FOR LEAVE TO FILE CROSS-COMPLAINT

Opposition - OPPOSITION [THE ACADEMY OF MOTION PICTURE ARTS AND SCIENCE] TO PLAINTIFFS MOTION FOR LEAVE TO FILE CROSS-COMPLAIN

7/8/2021: Opposition - OPPOSITION [THE ACADEMY OF MOTION PICTURE ARTS AND SCIENCE] TO PLAINTIFFS MOTION FOR LEAVE TO FILE CROSS-COMPLAIN

Appeal - Ntc Designating Record of Appeal APP-003/010/103

6/10/2021: Appeal - Ntc Designating Record of Appeal APP-003/010/103

Declaration - DECLARATION OF BENJAMIN RAMM IN SUPPORT OF MOTION FOR LEAVE TO FILE A CROSS COMPLAINT

6/18/2021: Declaration - DECLARATION OF BENJAMIN RAMM IN SUPPORT OF MOTION FOR LEAVE TO FILE A CROSS COMPLAINT

Motion for Leave to File a Cross-Complaint

6/18/2021: Motion for Leave to File a Cross-Complaint

Notice of Ruling

5/28/2021: Notice of Ruling

Request for Judicial Notice

4/16/2021: Request for Judicial Notice

Ex Parte Application - EX PARTE APPLICATION TO EXTEND BRIEFING SCHEDULE

4/1/2021: Ex Parte Application - EX PARTE APPLICATION TO EXTEND BRIEFING SCHEDULE

Proof of Service (not Summons and Complaint)

4/2/2021: Proof of Service (not Summons and Complaint)

Order - ORDER ORDER GRANTING THE ACADEMY OF MOTION PICTURE ARTS AND SCIENCES MOTION FOR LEAVE TO INTERVENE AND TO EXERCISE RIGHT OF FIRST REFUSAL

1/28/2021: Order - ORDER ORDER GRANTING THE ACADEMY OF MOTION PICTURE ARTS AND SCIENCES MOTION FOR LEAVE TO INTERVENE AND TO EXERCISE RIGHT OF FIRST REFUSAL

Notice of Ruling - NOTICE OF RULING NOTICE OF CONTINUANCE OF HEARING ON APPLICATION FOR ORDER FOR APPEARANCE AND EXAMINATION AND ISSUANCE OF BENCH WARRANT

2/18/2021: Notice of Ruling - NOTICE OF RULING NOTICE OF CONTINUANCE OF HEARING ON APPLICATION FOR ORDER FOR APPEARANCE AND EXAMINATION AND ISSUANCE OF BENCH WARRANT

Substitution of Attorney

2/19/2021: Substitution of Attorney

Declaration in Support of Ex Parte Application

1/27/2021: Declaration in Support of Ex Parte Application

Opposition - OPPOSITION OPPOSITION TO EX PARTE APPLICATION OF THE ACADEMY OF MOTION PICTURE ARTS AND SCIENCES FOR LEAVE TO FILE MOTION TO INTERVENE

1/28/2021: Opposition - OPPOSITION OPPOSITION TO EX PARTE APPLICATION OF THE ACADEMY OF MOTION PICTURE ARTS AND SCIENCES FOR LEAVE TO FILE MOTION TO INTERVENE

Minute Order - MINUTE ORDER (HEARING ON APPLICATION FOR ORDER FOR APPEARANCE AND EXAMINATION)

12/2/2020: Minute Order - MINUTE ORDER (HEARING ON APPLICATION FOR ORDER FOR APPEARANCE AND EXAMINATION)

Minute Order - MINUTE ORDER (COURT ORDER RE REASSIGNMENT)

9/17/2020: Minute Order - MINUTE ORDER (COURT ORDER RE REASSIGNMENT)

Writ of Execution - WRIT OF EXECUTION (ORANGE)

9/25/2020: Writ of Execution - WRIT OF EXECUTION (ORANGE)

56 More Documents Available

 

Docket Entries

  • 07/15/2021
  • Docketat 09:30 AM in Department 56; Nunc Pro Tunc Order

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  • 07/15/2021
  • Docketat 08:30 AM in Department 56; Hearing on Motion for Leave to File a Cross-Complaint - Held

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  • 07/15/2021
  • DocketMinute Order ( (Nunc Pro Tunc Order)); Filed by Clerk

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  • 07/15/2021
  • DocketMinute Order ( (Hearing on Motion for Leave to File a Cross-Complaint)); Filed by Clerk

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  • 07/15/2021
  • DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore; Filed by The Academy of Motion Picture Arts and Sciences (Plaintiff in Intervention)

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  • 07/08/2021
  • DocketDeclaration (-Reply Declaration Of Benjamin Ramm in Support of Motion for Leave to File a Cross Complaint); Filed by Maira E. Duarte Juarez (Plaintiff)

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  • 07/08/2021
  • DocketOpposition ([THE ACADEMY OF MOTION PICTURE ARTS AND SCIENCE] TO PLAINTIFFS MOTION FOR LEAVE TO FILE CROSS-COMPLAIN); Filed by The Academy of Motion Picture Arts and Sciences (Plaintiff in Intervention)

    Read MoreRead Less
  • 07/08/2021
  • DocketDeclaration (OF SAGE R. VANDEN HEUVEL IN SUPPORT OF THE ACADEMY OF MOTION PICTURE ARTS AND SCIENCES OPPOSITION TO PLAINTIFFS MOTION FOR LEAVE TO FILE CROSS-COMPLAINT); Filed by The Academy of Motion Picture Arts and Sciences (Plaintiff in Intervention)

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  • 07/08/2021
  • DocketReply (in Support of Motion for Leave to File a Cross Complaint); Filed by Maira E. Duarte Juarez (Plaintiff)

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  • 06/23/2021
  • DocketAppeal - Notice of Filing of Notice of Appeal; Filed by Clerk

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65 More Docket Entries
  • 09/24/2020
  • DocketAbstract of Judgment - Civil and Small Claims; Filed by Maira E. Duarte Juarez (Plaintiff)

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  • 09/18/2020
  • DocketWrit of Execution ((Los Angeles)); Filed by Maira E. Duarte Juarez (Plaintiff)

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  • 09/17/2020
  • Docketat 08:45 AM in Department 1, David J. Cowan, Presiding; Court Order

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  • 09/17/2020
  • DocketCertificate of Mailing for ((Court Order Re Reassignment) of 09/17/2020); Filed by Clerk

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  • 09/17/2020
  • DocketApplication and Order for Appearance and Examination; Filed by Maira E. Duarte Juarez (Plaintiff)

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  • 09/17/2020
  • DocketDeclaration of Interest, Costs and Attorney Fees; Filed by Maira E. Duarte Juarez (Plaintiff)

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  • 09/17/2020
  • DocketMinute Order ( (Court Order Re Reassignment)); Filed by Clerk

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  • 09/15/2020
  • DocketSubstitution of Attorney; Filed by Maira E. Duarte Juarez (Plaintiff)

    Read MoreRead Less
  • 06/25/2020
  • DocketCivil Case Cover Sheet; Filed by Maira E. Duarte Juarez (Plaintiff)

    Read MoreRead Less
  • 06/25/2020
  • DocketRequest of the Labor Commissioner that Clerk Enter Judgment; Filed by Maira E. Duarte Juarez (Plaintiff)

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Tentative Rulings

b"

Case Number: 20STCP02070 Hearing Date: August 23, 2021 Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Maira E. Duarte Juarez,

Plaintiff,

vs.

David S. Ward,

Defendant.

CASE NO.: 20STCP02070

[TENTATIVE] ORDER RE:

MOTION FOR ORDER EXTENDING ORAP LIEN, CCP 708.110(d)

Date: August 23, 2021

Time: 8:30 a.m.

Dept. 56

MOVING PARTY: Plaintiff Maira E. Duarte Juarez

RESPONDING PARTY: Intervenor Academy of Motion Picture Arts and Sciences

The Court has considered the moving, opposition, and reply papers.

BACKGROUND

Plaintiff Maria E. Duarte Juarez initiated this action by filing her Request that Clerk Enter Judgment and Judgment on Final Order, Decision, or Award of Labor Commissioner on June 25, 2020. The underlying award was entered in favor of Plaintiff against David S. Ward.

On September 17, 2020, the Court signed an Order to Appear for Examination (“ORAP”) under Code of Civil Procedure section 708.110 subdivision (d) as to David S. Ward (hereafter “Defendant”). Defendant was served with such on September 18, 2020.

The Court granted the Motion for Leave to Intervene and Exercise a Right of First Refusal Academy filed by Motion Picture Arts and Sciences (the “Academy”). Subsequently, the Academy filed its Complaint in Intervention against David S. Ward and Plaintiff on February 4, 2021. On April 29, 2021, the Court denied Plaintiff’s request for an order that Defendant surrender his Oscar statuette to the Sheriff pursuant to the ORAP lien. On June 1, 2021, Plaintiff filed her Notice of Appeal as to that order under Code of Civil procedure section 904.1 subdivision (a)(2).

On June 18, 2021, Plaintiff filed a Motion for Leave to file a Cross-Complaint against the Academy, which the Court denied on July 15, 2021.

On July 28, 2021, Plaintiff filed the instant Motion for Order Extending ORAP Lien, CCP 708.110(d). The Academy opposes.

DISCUSSION

A judgment creditor may apply for an order requiring the judgment debtor to appear before the court to furnish information to aid in enforcement of the money judgment. (Cal. Civ. Proc. § 708.110(a).) The judgment creditor must serve a copy of the order on the judgment debtor. (Cal. Civ. Proc. § 708.110(d).) Such service “creates a lien on the personal property of the judgment debtor for a period of one year from the date of the order unless extended or sooner terminated by the court.” (Id.)

Plaintiff, as judgment debtor, seeks an extension of the lien on the personal property of Defendant. Plaintiff asserts that she should be allowed to fully litigate whether she can foreclose on the lien that was created when she served Defendant with the ORAP. Plaintiff concedes that she is barred from filing a cross complaint to enforce that lien against intervenor Academy, as Plaintiff appealed a previous ruling which denied her similar relief. Plaintiff asserts that now, the Academy can now “run out the clock” on the ORAP lien without justifying its position.

Oscar Statuette and April 29, 2021 Order

Plaintiff states that on December 2, 2020, Defendant testified that he owned an Oscar statuette (the “Oscar”). When the Academy intervened, Plaintiff states that it took the position that selling one Oscar to the general public would diminish the incalculable value of every Oscar.

Defendant sold his Oscar to the Academy for $10.00 pursuant to an agreement between Defendant and the Academy. On April 29, 2021, the Court denied Plaintiff’s request for an order that Defendant surrender the Oscar to the Sheriff pursuant to the ORAP save and except for an order that Defendant surrender the proceeds of the transfer of the Oscar to the Academy, the sum of $10.00, to the Sheriff of the County of Los Angeles to apply to Plaintiff’s judgment. (Minute Order dated April 29, 2021, pp. 3-4.) The Court found that “Plaintiff is not entitled either to receive the Oscar from the Academy or to require it to be returned to Defendant and then surrendered by him to the Sheriff or disposition by Plaintiff.” (Id. at p. 3.)

Plaintiff contends that the scope of the order is limited. The order stated that “Plaintiff has neither sought delivery of the Oscar from the Academy nor has it argued that it has the right to do so.” (Id.) Further, Plaintiff states that this was reaffirmed during the oral argument.

Plaintiff sought permission to seek this relief through a cross-complaint, but was denied on the grounds that the pending appeal operated a stay of all proceedings.

Jurisdiction

Plaintiff contends that the Court has jurisdiction to extend the ORAP lien for two reasons: (1) the order challenged by the appeal is “self-executing” and (2) extending an ORAP lien resembles the kinds of actions appellate courts have allowed trial courts to take while an appeal is pending.

Plaintiff asserts that her appeal challenges a self-executing order. “The term ‘self-executing’ is practically self-defining, and obviously denotes a judgment that accomplishes by its mere entry the result sought, and requires no further exercise of the power of the court to accomplish its purpose.” (Feinberg v. One Doe Co. (1939) 14 Cal.2d 24, 29.) Plaintiff contends that a self-executing order includes one that denies an appellant relief based on the “fundamental principle that a stay of enforcement can only operate on a judgment commanding or permitting some act to be done. Where the judgment is effective by itself, without any additional act, it is said to be ‘self-executing,’ and there is nothing to restrain.” (9 Witkin California Procedure (5th Ed. 2008) Appeal, § 276.)

Here, Plaintiff states that when the Court declined to issue a turnover order, the Court’s order “required no further exercise of the power of the court to accomplish its purpose,” and merely denied relief to Plaintiff. As such, Plaintiff contends that this order was self-executing.

Second, Plaintiff argues that trial courts may continue to make decisions about liens and other orders to preserve the status quo despite a pending appeal, citing Palmer v. Fix (1928) 205 Cal.472. There, the Court discussed the appellants’ request for an order to extend a lien, which was about to expire, of an attachment issued and levied on the plaintiff’s real property. (Palmer at 473.) The Court stated that it was “the duty of the attaching party, notwithstanding the pendency of the appeal…to make timely application to the superior court wherein the action is pending for an extension of the term of said lien for the period provided for said section of the code, and to procure from said court an order to that effect…” (Id. at 475.)

Further, Plaintiff asserts that a judgment can be renewed while an appeal is pending. In Jonathan Neil & Associates, Inc. v. Jones (2006) 138 Cal.App.4th 1481, the Court evaluated appeals from the entry of a renewal of judgment and an order denying an appellant’s motion to vacate the renewal. (Jonathan Neil at 1483.) The Court stated that if the clerk of the trial court was not able to enter a renewal while an appeal was pending, the status quo would be altered, because if the appeal were not fully concluded within 10 years ‘after the date of entry’ of judgment, the judgment could not be enforced under the relevant code section. The Court explained that “renewal does not create a new judgment or modify the present judgment. Renewal merely extends the enforceability of the judgment.” (Id. at 1489.)

Plaintiff contends that the status quo will change if no action is taken in this case, because no deadlines have tolled. The Academy, according to Plaintiff, will be able to “run out the clock” on the ORAP lien without ever having to expose its position to serious scrutiny.

In opposition, the Academy contends that Plaintiff has established only that self-executing orders are not automatically stayed by the appeal, yet the cases Plaintiff relies on do not establish that trial court proceedings are not automatically stayed where a self-executing order is appealed. Under Code of Civil Procedure section 916, “the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.” (Cal. Civ. Proc. § 916(a).) In reply, Plaintiff contends that there is no legal distinction between “orders” and “proceedings.”

The Academy states that the Court has previously recognized that Plaintiff’s appeal of the Court’s April 29, 2021 Order divests the Court of subject matter jurisdiction over any matter embraced in or affected by the appeal during the pendency of that appeal. In its July 15, 2021 Order denying Plaintiff’s motion for leave to file a cross-complaint, the Court found that “the relief requested and the issues raised in the proposed cross-complaint primarily concern[ed] the “matters embraced . . . or affected” by appeal. As a result, the Court lack[ed] subject matter jurisdiction over the instant motion.” (Minute Order dated July 15, 2021, p. 4.) Moreover, the Academy suggests that Plaintiff is attempting to relitigate, for the third time, the same factual and legal issues already decided in the Court’s April 29, 2021 Order and therefore concerns “matters embraced…or affected” by the appeal. (Cal. Civ. Proc. § 916(a).)

In her motion, Plaintiff contends that the ORAP lien encumbers the Oscar; but the Court ruled that Plaintiff holds a lien on the proceeds from the transfer of the Oscar from Defendant, and found that Plaintiff is not entitled to receive the Oscar itself from the Academy, nor may Plaintiff require the Oscar be returned to Defendant. The Academy also takes issue with Plaintiff’s suggestion that the April 29, 2021 Order did not properly resolve the issue of whether the Academy’s right of first refusal was reasonable by repeating her arguments concerning restraints on alienation.

In sum, the Academy contends that Plaintiff is attempting to once again relitigate the same issues previously decided by the Court and now pending on appeal. Under Code of Civil Procedure Section 916, Plaintiff’s June 1, 2021 appeal “stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby.” As such, the Academy requests the Court deny Plaintiff’s motion.

The Court finds that it has the jurisdiction to extend the ORAP lien. An appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the order. (Cal. Civ. Proc. § 916(a).) “The purpose of the automatic stay provision of section 916, subdivision (a) ‘is to protect the appellate court's jurisdiction by preserving the status quo until the appeal is decided. The [automatic stay] prevents the trial court from rendering an appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it.’” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189.)

To determine whether a proceeding is embraced in or affected by the appeal, courts will consider whether the post-judgment or post-order proceedings would have any effect on the “effectiveness” of the appeal; if so, the proceedings are stayed, and if not, the proceedings are permitted. (Id.)

The instant case is analogous to Jonathan Neil & Associates, Inc., supra. There, when an appeal and cross-appeal were pending in the appellate court and the respondent applied for renewal of the judgment. (Jonathan Neil & Associates, supra at 1485.) The clerk of the superior court entered a notice of renewal of judgment. (Id.) The appellants filed a notice of appeal from the renewed judgment. (Id.) The appeal from the underlying judgment had not been decided by the court at that time. (Id.)

The consolidated appeal concerned the entry of the renewal of judgment and the denial of the motion to vacate that renewal. (Id. at 1487.) The Court found that the renewal of judgment was not an appealable event because entry of the renewal is purely ministerial and because there is no separate entity called the ‘renewed judgment.’ (Id.) The Court then considered the order denying the motion to vacate the renewal. The Court explained that the relevant legislation increased the limitations period for enforcement of the original judgment from five years to ten years, which was not tolled by an appeal or by a stay of enforcement. (Id. at 1488.)

The appellants argued that the trial court lost jurisdiction to renew the judgment while the appeal was pending, relying on Varian Medical Systems, Inc., supra. (Id.) The Court found that Varian supported the trial court’s exercise of jurisdiction “concerning both the renewal of judgment and the motion to vacate the renewal.” (Id.) The Court concluded that had the clerk of the trial court not been able to enter a renewal while an appeal was pending, the status quo would have been altered, as the judgment would not have been enforced if the appeal had not concluded within the 10-year enforcement period of the judgment. (Id. at 1489.) The Court found that the renewal did “not create a new judgment or modify the present judgment” and instead “merely extend[ed] the enforceability of the judgment.” (Id.)

Here, renewing the ORAP lien will not modify or create a new ORAP lien against Defendant, but instead will extend the enforceability of the existing ORAP lien against Defendant. If the Court does not extend the ORAP lien, it will expire on September 17, 2021, just as the judgment in Jonathan Neil & Associates had an expiration date. Accordingly, extension of this lien would not necessarily affect the “effectiveness” of the appeal on the merits.

The Court also finds that this retention of jurisdiction is consistent with the policy expressed in Code of Civil Procedure 916. The stay described in section 916 is meant to prevent a trial court from “rendering an appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it.’” (Varian Medical Systems, Inc., supra at 189.) Extending the ORAP lien would not render the appeal futile in such a way as to deprive the Court of jurisdiction to extend the lien here.

In sum, the Court finds that it retains jurisdiction to consider whether to extend the ORAP lien.

Extension of the Lien

Plaintiff contends that because Defendant has been served with the ORAP lien, the lien encumbers the Oscar that Defendant sold to the Academy. Had the turnover order been issued, Plaintiff states that the Oscar would have remained encumbered, as the turnover lien would have related back to the lien created by serving the ORAP. Without the turnover order, the ORAP lien – signed by the Court on September 17, 2020 – is set to expire on September 17, 2021.

Plaintiff contends that there are two usual reasons to terminate a lien based on two practical burdens: (1) the impairment of the marketability of the property and (2) the consideration that the lienholder cannot foreclose on the property. Plaintiff contends that the Academy does not bear either burden. First, Plaintiff asserts that the Oscar is not meant to be an item of commerce and the Academy intervened here because it does not believe that Defendant’s Oscar – or any Oscar – should be sold. Second, Plaintiff states that there is no risk of foreclosure because Plaintiff has been barred from filing a cross-complaint seeking that relief.

Plaintiff further argues that the policy of the law favors the enforcement of judgments and recognizes the importance of recovering wages. Extending the lien here would promote those policies. Plaintiff contends that she has not been able to challenge the factual support for the Academy’s position. Specifically, Plaintiff asserts that restraints on alienation – like the Academy’s equitable servitude – are disfavored, and Plaintiff has not been able to make that comparison in this action up to this point; instead, the discussion was “limited to a one-sentence conclusion that an equitable servitude encumbers the Oscar.” (Motion, 8:4-5.) As to that sentence, Plaintiff asserts that the conclusion is unclear when read in the context of the rest of the Court’s order and oral statements explaining its decision. Moreover, Plaintiff asserts that the finding of on equitable servitude necessarily implies a finding that the restriction was reasonable.

Based on the foregoing, Plaintiff requests the Court extend the ORAP lien until 141 days after the remittitur is issued in the appeal to leave the parties in the same position as they were when the request for a turnover order was denied on April 29, 2021.

The Academy, in its opposition, argues that Plaintiff has not identified any factual or legal reasons supporting an extension of the ORAP lien. The Academy states that the Court has already determined that the Academy properly possesses the Oscar; that Plaintiff is not entitled to a turnover order; and that Plaintiff’s lien now attaches to the $10 in proceeds received for the Oscar.

According to the Academy, Plaintiff has failed to cite any legal authority supporting the position that a trial court should extend a lien on personal property when the Court has already determined that the lien may only be enforced against the sale proceeds of that property.

As to burdens, the Academy contends that it is burdened by the ORAP lien. As long as the ORAP lien encumbers the Oscar, the Academy anticipates it will face “endless” legal maneuvers by Plaintiff to acquire the Oscar or force it sale. Further, the Academy states that there is no public policy in favor of extending liens indefinitely on the property of third parties – here, the Academy – when the judgment creditor – here, Plaintiff – has no right to foreclose on that property. Finally, the Academy argues that the ORAP lien should not be extended solely to permit Plaintiff to relitigate unsuccessful legal arguments.

In reply, Plaintiff argues that the status quo pending the appeal is the factual and legal basis for extending the lien.

The Court recognizes that Plaintiff may expend more time attempting to relitigate the issues heard before the Court on April 29, 2021. Nevertheless, the Court finds good cause to extend the ORAP lien. There is an appeal pending the Court’s April 29, 2021 Order concerning Defendant’s Oscar. Plaintiff is requesting the ORAP lien be extended 141 days after the remittitur is issued in the appeal to maintain the status quo.

The Court also recognizes that the Academy has presented persuasive arguments that it will be burdened by the encumbrance of the lien on the Oscar, as Plaintiff has demonstrated that she intends to litigate the circumstances of the Academy’s equitable servitude on Defendant’s Oscar. The Court finds, however, that the request that the ORAP lien be extended for 141 days after the issuance of a remittitur is not unduly burdensome to the Academy and will assist Plaintiff in enforcing her judgment regardless of the outcome of the appeal.

Plaintiff’s Motion to Extend ORAP Lien is GRANTED.

Moving Party is ordered to give notice of this ruling.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 23rd day of August, 2021

Hon. Holly J. Fujie

Judge of the Superior Court

"b'

Case Number: 20STCP02070 Hearing Date: July 15, 2021 Dept: 56

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SUPERIOR\r\nCOURT OF THE STATE OF CALIFORNIA

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FOR\r\nTHE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

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\r\n \r\n MAIRA\r\n E. DUARTE JUAREZ,

\r\n

Plaintiff,

\r\n

vs.

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\r\n

DAVID S. WARD,

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Defendant.

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ACADEMY OF MOTION PICTURE ARTS AND\r\n SCIENCES,

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Plaintiff-Intervenor

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vs.

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DAVID S. WARD, MARIA E. DUARTE JUAREZ,

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Defendants\r\n in Intervention

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\r\n CASE NO.: 20STCP02070

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[TENTATIVE] ORDER RE:

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MOTION FOR LEAVE TO FILE A\r\n CROSS-COMPLAINT

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Date: July 15, 2021

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Time: 8:30 a.m.

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Dept. 56

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Jury Trial: None Set

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MOVING PARTY: Plaintiff/Defendant\r\nin Intervention Maria E. Duarte Juarez (“Juarez”)

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RESPONDING PARTY: Plaintiff-Intervenor\r\nAcademy of Motion Picture Arts and Sciences (“Academy”)

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The Court has considered the moving,\r\nopposition, and reply papers.

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BACKGROUND

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On June 25, 2020, a money judgment was entered\r\nagainst Defendant David Ward (“Ward”) by Juarez in the total amount of\r\n$82,269.94. On September 18, 2020, Ward was served with an Application and\r\nOrder for Appearance and Examination (“ORAP”) under Code Civ. Proc. §\r\n708.110(d) in the within case. Juarez sought the delivery of Ward’s Oscar\r\nstatuette so she could arrange for its sale and application of the proceeds to\r\nthe money judgement. On February 2, 2021, Ward offered the Oscar statuette to\r\nthe Academy pursuant to a prior existing agreement and the Academy Bylaws that\r\ngave the Academy. The Academy accepted the offer under its right of first\r\nrefusal and paid Ward the agreed-upon sum of $10 in exchange therefor, and Ward\r\ndelivered the Oscar statuette to the Academy, which currently holds it. On\r\nFebruary 4, 2021, with the permission of this Court, the Academy filed a\r\nComplaint in Intervention in this action.

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When Juarez answered the Academy’s\r\nComplaint in Intervention on April 28, 2021, she was prevented from\r\nconcurrently filing a cross-complaint due to purported technical issues with\r\nthe e-filing system. (Ramm Decl. ¶ 4.)

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On\r\nApril 29, 2021, the Court issued a decision denying Juarez’s request for Ward\r\nto surrender the Oscar statuette to the Los Angeles County Sheriff’s Department\r\npursuant to the ORAP, and instead, the Court ordered Ward to surrender the ten\r\ndollar ($10) proceeds of the Oscar statuette transfer to the Sheriff’s for it\r\nto be applied to Juarez’s money judgment. Thereafter, on June 1, 2021, Juarez\r\nfiled a notice of appeal of the order after judgment under Code of Civil\r\nProcedure § 904.1(a)(2).

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Subsequently,\r\non June 18, 2021, Juarez filed a motion for leave to file a cross-complaint\r\nagainst Academy.

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DISCUSSION

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  1. Legal Standard

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Under Code of Civil Procedure §\r\n428.50, the Court may grant leave to file a cross-complaint in the interest of\r\njustice at any time during the course of the action. ¿A policy of liberal\r\nconstruction of section 426.50 to avoid forfeiture of causes of action is\r\nimposed on the trial court. (Silver Orgs. v. Frank (1990)\r\n217 Cal. App. 3d 94, 98-99.) ¿A motion to file a cross-complaint at any\r\ntime during the course of the action must be granted unless substantial\r\nevidence of bad faith is demonstrated. ¿(Id.) ¿Bad faith involves\r\nconduct, not prompted by an honest mistake, but by some sinister motive, not\r\nsimply bad judgment or negligence, but rather the conscious doing of a wrong\r\nbecause of dishonest purpose or moral obliquity. ¿(Id.) ¿Bad faith\r\ncontemplates a state of mind affirmatively operating with furtive design or ill\r\nwill. ¿(Id.) Code of Civil Procedure § 426.10 defines a\r\ncross-complaint as compulsory when its claims arise from the same transaction,\r\noccurrence, or series of transactions or occurrences as the claims in the\r\ncomplaint.

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  1. Analysis

    1. Whether the Court\r\nLacks Subject Matter Jurisdiction Due to Juarez’s Appeal.

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“[T]he\r\nperfecting of an appeal stays proceedings in the trial court upon the judgment\r\nor order appealed from or upon the matters embraced therein or affected\r\nthereby.” (Civ. Proc. Code § 916(a).) A trial court is divested of jurisdiction\r\nover a matter through a valid notice of appeal. (People v. Perez (1979)\r\n23 Cal.3d 545, 554.) “[A] court is without power to proceed further as to any\r\nmatter embraced therein until the appeal is determined.” (Stateler v. Superior\r\nCourt (1895) 107 Cal. 536, 539.)

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Here,\r\nAcademy argues that the Court lacks jurisdiction over Juarez’s motion because\r\nher notice of appeal divested the Court of subject matter jurisdiction.\r\n(Opposition at pg. 3.) Academy asserts that Juarez’s proposed cross-complaint\r\nrelates to issues already decided by the Court and that are now on appeal.\r\n(Opposition at pg. 4.) Specifically, Academy states that the proposed\r\ncross-complaint’s asserts the same legal arguments and remedies that Juarez\r\nraised prior to the April 29, 2021 decision. (Opposition at pp. 4-5.)

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In\r\nreply, Juarez argues that the Court still has jurisdiction to decide the\r\ninstant motion for three reasons. First, Juarez asserts that an appeal does not\r\nstay the enforcement of an order for the payment of money pursuant to Code of\r\nCivil Procedure § 917.1(a)(1), and that Ward was ordered to surrender the\r\nproceeds of the Oscar statuette transfer. (Reply at pg. 3.) Second, Juarez\r\nreasons that granting this motion will have no effect on the appeal because it\r\ndoes not require the Court to proceed on the merits. (Reply at pg. 4.) Third,\r\nJuarez asserts that the proposed cross-complaint is ancillary because it is\r\ndirected at Academy and would not affect the judgment on appeal.

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The\r\nCourt is unpersuaded by these arguments and will address them in turn. First,\r\nwhile Code of Civil Procedure § 917.1(a)(1) states that an appeal does not stay\r\nthe enforcement of an order for the payment of money, it is limited to just\r\nthat. Ward is still obligated to follow the order to surrender the $10 proceeds\r\nto the Sheriff’s Department; however, that enforcement order does not keep open\r\nthe issue regarding the enforceability or validity of the underlying transfer.\r\nSecond, even though this motion does not require a ruling on the merits of the\r\nproposed cross-complaint, Juarez’s third argument suggests that the Court\r\nshould proceed on its merits during the pendency of the appeal. Third, doing so\r\nwould affect the judgment on appeal because the Court has addressed several of\r\nthe matters addressed in the proposed cross-complaint. Moreover, the fact that\r\nthe cross-complaint is against Academy, not Ward, is a difference without a\r\ndistinction. For instance, the cross-complaint seeks a determination that\r\nAcademy is deemed indebted to Juarez, that Academy is prevented from claiming\r\nany equity of redemption in the Oscar statuette, and that the transfer is void\r\npursuant to the Uniform Voidable Transfers Act. All of these issues were\r\naddressed by Juarez in the matters previously addressed to the Court that were\r\nfound to be unavailing and which are now on appeal. (Compare Ramm Decl., Exh.\r\n1, Proposed Cross-Complaint with Juarez’s opening brief and reply brief.) The\r\nonly novel issue raised in the proposed cross-complaint is that it seeks\r\ndelivery of the Oscar statuette from Academy, but this is only one issue of\r\nmany raised by the proposed cross-complaint and it arises from the other claims.\r\nThus, the Court finds that the relief requested and the issues raised in the proposed\r\ncross-complaint primarily concern the “matters embraced . . . or affected” by\r\nappeal. (Stateler, supra, 107 Cal. at 539.) As a result, the Court lacks\r\nsubject matter jurisdiction over the instant motion. In a situation where\r\nJuarez’s appeal is granted, then the Court would reconsider this issue.

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Accordingly, the Court DENIES Juarez’s\r\nmotion for leave to file a cross-complaint without prejudice.

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Moving\r\nParty is ordered to give notice of this ruling.

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Parties who intend to submit on this\r\ntentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed\r\nby the instructions provided on the court website at www.lacourt.org. If the department does not receive an email\r\nand there are no appearances at the hearing, the motion will be placed off\r\ncalendar.

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Dated this 15th day of July 2021

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Hon. Holly J.\r\n Fujie

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Judge of the\r\n Superior Court

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Case Number: 20STCP02070    Hearing Date: April 29, 2021    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MAIRA E. DUARTE JUAREZ,

Plaintiff,

vs.

DAVID S. WARD, etc.,

Defendant.

CASE NO.: 20STCP02070

[TENTATIVE] ORDER RE: OSCAR STATUETTE

Date: April 29, 2021

Time: 8:30 a.m.

Dept. 56

MOVING PARTY: Plaintiff Maira E. Duarte Juarez

RESPONDING PARTIES: Defendant David Ward and Intervenor Academy of Motion Picture Arts & Sciences (“Academy”)

The Court has considered all papers submitted in connection with this issue.

BACKGROUND

In 1974, the Academy awarded an Oscar statuette (the “Oscar”) to Defendant. As a condition to receiving this award (the “Award”), Defendant signed a document entitled “Receipt for Academy Award Statuette” (the “Winner’s Agreement”). Declaration of Michael Fazio (“Fazio Decl.”), Exh. B. The Winners Agreement provides, in relevant part:

“I hereby acknowledge receipt from you of replica No. 1659 of your copyrighted statuette, commonly known as Oscar”, as an Award for Best Story and Screenplay- ‘the Sting’. I acknowledge that my receipt of said replica does not entitle me to any right whatsoever in your copyright of said statuette and that only the physical replica itself shall belong to me. In consideration of your delivering said replica to me, I agree to comply with your rules and regulations respecting its use and not to sell or otherwise dispose of it, nor permit it to be sold or disposed of by operation of law, without first offering to sell it to you for the sum of $10. 00. You shall have 30 days after any such offer is made to you within which to accept it. This agreement shall be binding not only on me, but also on my heirs, legatees, executors, administrators, Estate, successors and assigns. My legatees and heirs shall have the right to acquire said replica, if it becomes part of my Estate, subject to this agreement.” Fazio Decl., Exh. B, p. AMPAS000001.

The Bylaws of the Academy further provide that every such Award shall be conditioned upon the execution and delivery to the Academy by the recipient thereof of a receipt and agreement with this language. Fazio Decl., Ex. A, p. AMPAS000014. Defendant has been a member of the Academy from that time to the present and is bound by its Bylaws.

On June 25, 2020, a money judgment (the “Judgment”) was entered against Defendant by Plaintiff in the total amount of $82,269.94. On September 18, 2020, Defendant was served with an Application and Order for Appearance and Examination “(ORAP”) under Code Civ. Proc. § 708.110(d) in the within case. Plaintiff seeks delivery to Plaintiff of the Sheriff of Los Angeles County of the Oscar so she could arrange for its sale and application of the proceeds to the Judgment. On February 2, 2021, Defendant offered the Oscar to the Academy pursuant to the Winners Agreement and the Academy Bylaws. The Academy accepted the offer under its right of first refusal and paid Defendant the agreed-upon sum of $10 in exchange therefor, and Defendant delivered the Oscar to the Academy, which currently holds it. On February 4, 2021, with the permission of this Court, the Academy filed a Complaint in Intervention in this action.

The Academy’s Request for Judicial Notice is GRANTED. (Evid. Code § 451(a).)

After reviewing the briefs submitted by the parties, the Court finds as follows:

  1. The Oscar is and was while possessed by Defendant subject to an equitable servitude in favor of the Academy, both through the Winners Agreement and under the Bylaws of the Academy. (Nadell & Co. v. Grasso (1959) 175 Cal.App.2d 420, 426.)

  2. This equitable servitude required Defendant to offer the Oscar to the Academy in return for the sum of $10 before himself selling or disposing of it by operation of law, or allowing it to be sold or disposed of by operation of law, as the ORAP process commenced by Plaintiff would constitute “disposing of” the Oscar “by operation of law.”

  3. Defendant, when faced with the possibility of the Oscar subject to this equitable servitude being disposed of by operation of law through the ORAP process, was required by the terms of the Winners Agreement and the Bylaws to which he was subject as a member of the Academy to first offer it to the Academy.

  4. Defendant in fact offered the Oscar to the Academy pursuant to his obligations as a member of the Academy and the recipient of the award, as well as pursuant to the equitable servitude on the Oscar, and the Academy purchased it for the sum of $10 as provided in the Winners Agreement and the Bylaws of the Academy.

  5. The Academy now owns and possesses the Oscar.

  6. Plaintiff holds a lien on the proceeds from the transfer of the Oscar from Defendant to the Academy based upon the service of the ORAP on Defendant while he had possession thereof. (Southern Cal. Bank v. Zimmerman (In re Hilde) (9th Cir. 1997) 120 F.3d 950, 952, 954.)

  7. The existence of the ORAP lien on the Oscar does not permit Plaintiff to require Defendant to “pay the judgment ‘under its ORAP lien’,” as even Plaintiff notes in her Opening Brief, she as judgment creditor can only demand that after sale of personal property subject to an ORAP lien, she receive “payment of the proceeds under its ORAP lien.” (Plaintiff’s Opening Brief, p. 5, lines 21-22.)

  8. The proceeds of the transfer of the Oscar from Defendant to the Academy was $10.

  9. Plaintiff is entitled to receive the sum of $10 from Defendant to apply towards satisfaction of the judgment based upon this transaction. Plaintiff is not entitled either to receive the Oscar from the Academy or to require it to be returned to Defendant and then surrendered by him to the Sheriff for disposition by Plaintiff.

  10. The Court further finds that: 1) the Oscar is not now in the possession of Defendant, so that he technically cannot at this time deliver it to the Sheriff as sought by Plaintiff; 2) the Academy has acquired the Oscar based upon a valid contractual transaction and has paid the amount which it was contractually required to pay for it; 3) at this time, Plaintiff has neither sought delivery of the Oscar from the Academy nor has it argued that it has the right to do so; 4) even if the Academy were to return the Oscar to Defendant and Defendant were ordered to surrender it to the Sheriff, Plaintiff would be unable to sell it, either herself or through a third party, because of the existence of the equitable servitude on it created by the Winners Agreement and the Bylaws of the Academy. Therefore, even if Plaintiff were to prevail in this effort, she would be unable to obtain an asset that would reduce the amount of her judgment – other than the $10 noted above.

Therefore, the Court rules that Plaintiff’s request for an order that Defendant surrender the Oscar to the Sheriff pursuant to the ORAP is DENIED, save and except for an order that Defendant surrender the proceeds of the transfer of the Oscar to the Academy, the sum of $10 (Ten Dollars), to the Sheriff of the County of Los Angeles to apply to Plaintiff’s judgment.

Moving party is ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 29th day of January 2021

Hon. Holly J. Fujie

Judge of the Superior Court

Case Number: 20STCP02070    Hearing Date: January 29, 2021    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

CENTRAVEL, INC., etc., et al.,

Plaintiffs,

vs.

MARVIN A. TORRES, etc., et al.,

Defendants.

CASE NO.: 20STCV26163

ORDER RE:

MOTIONS TO QUASH SUBPOENAS

Date: January 29, 2021

Time: 8:30 a.m.

Dept. 56

On the Court’s own motion, the Court continues the hearings on the: (1) motion to quash Plaintiffs’ subpoena for production of business records dated October 16, 2020 directed at non-party Delta Air Lines, Inc[1].; and (2) motion to quash Plaintiffs’ subpoena for production of business records dated September 21, 2020 directed at non-party American Express Company[2], filed by Defendant Marvin A. Torres, scheduled for 1/29/2021 at 8:30 a.m. at Stanley Mosk Courthouse in Department 56 to 2/18/2021 at 8:30 a.m. in Department 56.

Moving party is ordered to give notice of this ruling.

Dated this 29th day of January 2021

Hon. Holly J. Fujie

Judge of the Superior Court


[1] This motion has a reservation identification number ending in 3868.

[2] This motion has a reservation identification number ending in 4753.

Case Number: 20STCP02070    Hearing Date: January 27, 2021    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MAIRA E. DUARTE JUAREZ,

Plaintiff,

vs.

DAVID S. WARD, etc.,

Defendant.

CASE NO.: 20STCP02070

[TENTATIVE] ORDER RE: MOTIONS TO COMPEL RESPONSES; REQUEST FOR MONETARY SANCTIONS

Date: January 27, 2021

Time: 8:30 a.m.

Dept. 56

MOVING PARTY: Plaintiff Maira E. Duarte Juarez

The Court has considered the moving papers. No opposition papers were filed.

BACKGROUND

Plaintiff filed the following two unopposed discovery motions: (1) a motion to compel Defendant’s responses to Plaintiff’s Special Interrogatories (the “Special Interrogatories Motion”), for monetary sanctions of $425.00 against Defendant, and for costs of $60.00 incurred in bringing the Special Interrogatories Motion; and (2) a motion to compel Defendant’s responses to Plaintiff’s Requests for Production of Documents (the “Production Motion”), for monetary sanctions of $425.00 against Defendant, and for costs of $60.00 incurred in bringing the Production Motion. Both motions will be addressed in this ruling.

THE SPECIAL INTERROGATORIES MOTION

Code Civ. Proc. § 2023.010(d) provides that a misuse of the discovery process is failing to respond or to submit to an authorized method of discovery. Code Civ. Proc. § 2023.010(h) states that a misuse of the discovery process includes making or opposing, unsuccessfully and without substantial justification, a motion to compel or limit discovery. A court may impose a monetary sanction against a party engaging in the misuse of the discovery process or any attorney advising such conduct under Code Civ. Proc. § 2023.030(a). A court has discretion to fix the amount of reasonable monetary sanctions. (Cornerstone Realty Advisors, LLC v. Summit Healthcare Reit, Inc. (2020) 56 Cal.App.5th 771.)

The Court GRANTS the Special Interrogatories Motion as it is unopposed under Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410, and the Court orders Defendant to provide complete, verified, and code-compliant responses, without objection, to the discovery at issue in the Special Interrogatories Motion within 30 days of the date of this order. As to such motion, the Court GRANTS Plaintiff’s request for monetary sanctions and AWARDS Plaintiff reasonable monetary sanctions against Defendant in the amount of $400.00. Monetary sanctions are to be paid by Defendant to Plaintiff within 20 days of the date of this order.

THE PRODUCTION MOTION

The Court GRANTS the Production Motion as it is unopposed under Sexton, and the Court orders Defendant to provide complete, verified, and code-compliant responses, without objection, to the discovery at issue in the Production Motion within 30 days of the date of this order. As to such motion, the Court GRANTS Plaintiff’s request for monetary sanctions and AWARDS Plaintiff reasonable monetary sanctions against Defendant in the amount of $400.00. Monetary sanctions are to be paid by Defendant to Plaintiff within 20 days of the date of this order.

Moving party is ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 27th day of January 2021

Hon. Holly J. Fujie

Judge of the Superior Court

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