This case was last updated from Los Angeles County Superior Courts on 08/11/2021 at 20:29:56 (UTC).

REBECCA COOPER VS KENNETH GRAY, ET AL.

Case Summary

On 01/23/2019 REBECCA COOPER filed a Contract - Other Contract lawsuit against KENNETH GRAY. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******1674

  • Filing Date:

    01/23/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

 

Party Details

Cross Defendant and Plaintiff

COOPER REBECCA

Cross Plaintiffs and Defendants

MOWGLY UNLIMITED INC.

KAG CONSULTING INC.

GRAY KENNETH

21ST CENTURY WELLNESS INC.

Attorney/Law Firm Details

Plaintiff Attorneys

COOPER MICHAEL B.

KENNEDY MORGAN M.

Cross Plaintiff and Defendant Attorney

LAWRENCE AMY B.

 

Court Documents

Minute Order - (AMENDED)

7/27/2021: Minute Order - (AMENDED)

Judgment - JUDGMENT JUDGMENT BY DEFAULT

7/27/2021: Judgment - JUDGMENT JUDGMENT BY DEFAULT

Request for Dismissal

7/7/2021: Request for Dismissal

Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: DISMISSAL)

6/29/2021: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: DISMISSAL)

Motion to Deem RFA's Admitted

12/22/2020: Motion to Deem RFA's Admitted

Notice - NOTICE PLAINTIFF AND CROSS-DEFENDANT REBECCA COOPERS NOTICE OF NON-OPPOSITION TO MOTION FOR AN ORDER THAT REQUESTS FOR ADMISSION (SET ONE) BE DEEMED ADMITTED AND REQUEST FOR SANCTIONS IN THE

1/11/2021: Notice - NOTICE PLAINTIFF AND CROSS-DEFENDANT REBECCA COOPERS NOTICE OF NON-OPPOSITION TO MOTION FOR AN ORDER THAT REQUESTS FOR ADMISSION (SET ONE) BE DEEMED ADMITTED AND REQUEST FOR SANCTIONS IN THE

Minute Order - MINUTE ORDER (HEARING ON MOTION TO DEEM REQUEST FOR ADMISSIONS ADMITTED)

1/21/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION TO DEEM REQUEST FOR ADMISSIONS ADMITTED)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION TO DEEM REQUEST FOR ADMISSIONS ADMITTED) OF 01/21/2021

1/21/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION TO DEEM REQUEST FOR ADMISSIONS ADMITTED) OF 01/21/2021

Declaration - DECLARATION OF MORGAN M. KENNEDY IN SUPPORT OF PLAINTIFF AND CROSS-DEFENDANT REBECCA COOPERS MOTION FOR TERMINATING SANCTIONS

2/3/2021: Declaration - DECLARATION OF MORGAN M. KENNEDY IN SUPPORT OF PLAINTIFF AND CROSS-DEFENDANT REBECCA COOPERS MOTION FOR TERMINATING SANCTIONS

Motion for Terminating Sanctions

2/3/2021: Motion for Terminating Sanctions

Notice - NOTICE PLAINTIFF AND CROSS-DEFENDANT REBECCA COOPERS NOTICE OF NON-OPPOSITION TO MOTION FOR TERMINATING SANCTIONS

2/24/2021: Notice - NOTICE PLAINTIFF AND CROSS-DEFENDANT REBECCA COOPERS NOTICE OF NON-OPPOSITION TO MOTION FOR TERMINATING SANCTIONS

Notice - NOTICE PLAINTIFF AND CROSS-DEFENDANT REBECCA COOPERS NOTICE OF CONTINUANCE OF FINAL STATUS CONFERENCE

2/26/2021: Notice - NOTICE PLAINTIFF AND CROSS-DEFENDANT REBECCA COOPERS NOTICE OF CONTINUANCE OF FINAL STATUS CONFERENCE

Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE)

2/26/2021: Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE)

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR TERMINATING SANCTIONS; FINAL STATUS CON...)

3/4/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR TERMINATING SANCTIONS; FINAL STATUS CON...)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION FOR TERMINATING SANCTIONS; FINAL STATUS CON...) OF 03/04/2021

3/4/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION FOR TERMINATING SANCTIONS; FINAL STATUS CON...) OF 03/04/2021

Proof of Service (not Summons and Complaint)

3/16/2021: Proof of Service (not Summons and Complaint)

Request for Dismissal

3/16/2021: Request for Dismissal

Request for Entry of Default / Judgment

3/16/2021: Request for Entry of Default / Judgment

82 More Documents Available

 

Docket Entries

  • 07/27/2021
  • Docketat 08:30 AM in Department 34; Order to Show Cause Re: (Entry of Default Judgment) - Held

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  • 07/27/2021
  • DocketMinute Order ( (Order to Show Cause Re: Entry of Default Judgment)); Filed by Clerk

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  • 07/27/2021
  • DocketJudgment (JUDGMENT BY DEFAULT); Filed by Rebecca Cooper (Plaintiff)

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  • 07/07/2021
  • DocketRequest for Dismissal; Filed by Rebecca Cooper (Plaintiff)

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  • 06/29/2021
  • Docketat 08:30 AM in Department 34; Order to Show Cause Re: Dismissal - Held

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  • 06/29/2021
  • DocketMinute Order ( (Order to Show Cause Re: Dismissal)); Filed by Clerk

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  • 06/02/2021
  • DocketRequest for Entry of Default / Judgment; Filed by Rebecca Cooper (Plaintiff)

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  • 06/02/2021
  • DocketDeclaration (DECLARATION OF MORGAN M. KENNEDY IN SUPPORT OF APPLICATION FOR DEFAULT JUDGMENT PURSUANT TO 585(d)); Filed by Rebecca Cooper (Plaintiff)

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  • 06/02/2021
  • DocketProof of Service (not Summons and Complaint); Filed by Rebecca Cooper (Plaintiff)

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  • 05/06/2021
  • DocketRequest for Entry of Default / Judgment; Filed by Rebecca Cooper (Plaintiff)

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118 More Docket Entries
  • 06/21/2019
  • DocketNotice (and Declaration of Morgan M. Kennedy in Support of Plaintiff and Cross-Defendant Rebecca Cooper's Automatic 30-Day Extension of Time to File a Responsive Pleading Pursuant to Code of Civil Procedure 430.41); Filed by Rebecca Cooper (Plaintiff)

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  • 06/21/2019
  • DocketNotice (of Signing of an order RE Change of Venue and Request for Payment of Fees); Filed by Clerk

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  • 06/21/2019
  • DocketNotice (of Case Transmittal and Notice of Receipt of Transferred Case); Filed by Clerk

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  • 06/21/2019
  • DocketRegister of Actions from San Diego Co.; Filed by Clerk

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  • 06/21/2019
  • DocketCertificate of Mailing for ([ Notice of Case Assignment - Unlimited Civil Case, Notice of Incoming Transfer]); Filed by Clerk

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  • 06/21/2019
  • DocketStipulation and Order to Transfer Action to The Superior Ciourt of Los Angeles County; Filed by Kenneth Gray (Defendant); Mowgly Unlimited, Inc. (Defendant); KAG Consulting, Inc. (Defendant)

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  • 06/21/2019
  • DocketCross-Complaint; Filed by Kenneth Gray (Cross-Complainant); KAG Consulting, Inc. (Cross-Complainant); Mowgly Unlimited, Inc. (Cross-Complainant) et al.

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  • 01/23/2019
  • DocketComplaint; Filed by Rebecca Cooper (Plaintiff)

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  • 01/23/2019
  • DocketCivil Case Cover Sheet; Filed by Rebecca Cooper (Plaintiff)

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  • 01/23/2019
  • DocketTransfer In Case Documents; Filed by Clerk

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Tentative Rulings

b"

Case Number: 19STCV21674 Hearing Date: July 27, 2021 Dept: 34

\r\n\r\n

PLAINTIFF’S REQUEST FOR ENTRY OF DEFAULT JUDGMENT

\r\n\r\n

\r\n\r\n

BACKGROUND:

\r\n\r\n

\r\n\r\n

On June 21, 2019, Plaintiff Rebecca\r\nCooper commenced this action against Defendants Kenneth Gray, Mowgly Unlimited,\r\nInc., and KAG Consulting, Inc. for (1) breach of written contract (stock sale\r\nagreement); and (2) breach of written contract (secured promissory note).

\r\n\r\n

\r\n\r\n

On June 21, 2019, Kenneth Gray,\r\nMowgly Unlimited, Inc., KAG Consulting, Inc., and 21st Century Wellness, Inc.\r\nfiled a cross-complaint against Plaintiff for (1) material misrepresentation in\r\nsecurities transaction; (2) breach of contract; (3) rescission; (4) conversion;\r\n(5) breach of fiduciary duty and constructive fraud negligent\r\nmisrepresentation; (6) fraud; and (7) violation of Penal Code section 496(c).

\r\n\r\n

\r\n\r\n

On June 21, 2019, Kenneth Gray,\r\nMowgly Unlimited, Inc., and KAG Consulting, Inc. filed an answer to the\r\ncomplaint.

\r\n\r\n

\r\n\r\n

On December 16, 2019, Defendant\r\nMowgly Unlimited, Inc. filed a notice of stay of proceedings because it filed a\r\nvoluntary Bankruptcy under Chapter 7 of the United States Bankruptcy Code.

\r\n\r\n

\r\n\r\n

On March 2, 2020,\r\nDefendant/Cross-Complainant Kenneth Gray filed a substitution of attorney,\r\nsubstituting his former counsel, Amy B. Lawrence, with himself.

\r\n\r\n

\r\n\r\n

On July 30, 2020, the Court granted\r\nthe three motions to be relieved as counsel filed by Amy B. Lawrence, counsel\r\nfor Mowgly Unlimited, Inc., KAG Consulting, Inc., and 21st Century Wellness,\r\nInc.

\r\n\r\n

\r\n\r\n

On September 29, 2020, the Court\r\ndenied Plaintiff/Cross-Defendant Rebecca Cooper’s motion to strike as to\r\nDefendant Gray and granted the motion to strike as to Mowgly Unlimited, Inc.\r\nand KAG Consulting, Inc. The Court ordered the answers of Mowgly Unlimited,\r\nInc. and KAG Consulting, Inc. stricken and the cross-complaints of Mowgly\r\nUnlimited, Inc., KAG Consulting, Inc., and 21st Century Wellness, Inc.\r\nstricken.

\r\n\r\n

\r\n\r\n

On January 21, 2021, the Court\r\ngranted Plaintiff/Cross-Defendant Rebecca Cooper’s motion to deem requests for\r\nadmission admitted as to Defendant/Cross-Complainant Kenneth Gray.

\r\n\r\n

\r\n\r\n

On March 4, 2021, the Court granted\r\nPlaintiff/Cross-Defendant Rebecca’s motion for terminating sanctions against\r\nDefendant/Cross-Complainant Kenneth Gray. The Court ordered the answer and\r\ncross-complaint of Kenneth Gray stricken.

\r\n\r\n

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On March 25, 2021, default was\r\nentered as to Defendant Kenneth Gray.

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On May 6, 2021, default was entered\r\nas to Defendants Mowgly Unlimited, Inc. and KAG Consulting, Inc.

\r\n\r\n

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On July 9, 2021, pursuant to\r\nPlaintiff’s request, dismissal without prejudice was entered as to Defendants\r\nMowgly Unlimited, Inc. and KAG Consulting, Inc.

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ANALYSIS:

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Plaintiff requests $23,238.93 in\r\nattorney’s fees. (Kennedy Decl., ¶ 33(c).)

\r\n\r\n

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Based on a principal amount of\r\n$510,052.69, the default attorney fee schedule provides for $6,990.53. Plaintiff’s\r\ncounsel does not explain why greater fees should be allowed.

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The request for entry\r\nof default judgment is GRANTED in part. The Court enters default judgment in the\r\namount of $517,473.22 as indicated below:

\r\n\r\n

\r\n\r\n\r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n
\r\n

Default Judgment

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Category

\r\n
\r\n

Amount Requested

\r\n
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Amount Granted

\r\n
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Demand of Complaint

\r\n
\r\n

$510,052.69

\r\n
\r\n

$510,052.69

\r\n
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General Damages

\r\n
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$0.00

\r\n
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$0.00

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Special Damages

\r\n
\r\n

$0.00

\r\n
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$0.00

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Interest

\r\n
\r\n

$0.00

\r\n
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$0.00

\r\n
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Costs

\r\n
\r\n

$430.00

\r\n
\r\n

$430.00

\r\n
\r\n

Attorney's fees

\r\n
\r\n

$23,238.93

\r\n
\r\n

$6,990.53

\r\n
\r\n

$533,721.62

\r\n
\r\n

$517,473.22

\r\n
\r\n\r\n

"

Case Number: 19STCV21674    Hearing Date: April 29, 2021    Dept: 34

PLAINTIFF’S REQUEST FOR ENTRY OF DEFAULT JUDGMENT

BACKGROUND:

On June 21, 2019, Plaintiff Rebecca Cooper commenced this action against Defendants Kenneth Gray, Mowgly Unlimited, Inc., and KAG Consulting, Inc. for (1) breach of written contract (stock sale agreement); and (2) breach of written contract (secured promissory note).

On June 21, 2019, Kenneth Gray, Mowgly Unlimited, Inc., KAG Consulting, Inc., and 21st Century Wellness, Inc. filed a cross-complaint against Plaintiff for (1) material misrepresentation in securities transaction; (2) breach of contract; (3) rescission; (4) conversion; (5) breach of fiduciary duty and constructive fraud negligent misrepresentation; (6) fraud; and (7) violation of Penal Code section 496(c).

On June 21, 2019, Kenneth Gray, Mowgly Unlimited, Inc., and KAG Consulting, Inc. filed an answer to the complaint.

On December 16, 2019, Defendant Mowgly Unlimited, Inc. filed a notice of stay of proceedings because it filed a voluntary Bankruptcy under Chapter 7 of the United States Bankruptcy Code.

On March 2, 2020, Defendant/Cross-Complainant Kenneth Gray filed a substitution of attorney, substituting his former counsel, Amy B. Lawrence, with himself.

On July 30, 2020, the Court granted the three motions to be relieved as counsel filed by Amy B. Lawrence, counsel for Mowgly Unlimited, Inc., KAG Consulting, Inc., and 21st Century Wellness, Inc.

On September 29, 2020, the Court denied Plaintiff/Cross-Defendant Rebecca Cooper’s motion to strike as to Defendant Gray and granted the motion to strike as to Mowgly Unlimited, Inc. and KAG Consulting, Inc. The Court ordered the answers of Mowgly Unlimited, Inc. and KAG Consulting, Inc. stricken and the cross-complaints of Mowgly Unlimited, Inc., KAG Consulting, Inc., and 21st Century Wellness, Inc. stricken.

On January 21, 2021, the Court granted Plaintiff/Cross-Defendant Rebecca Cooper’s motion to deem requests for admission admitted as to Defendant/Cross-Complainant Kenneth Gray.

On March 4, 2021, the Court granted Plaintiff/Cross-Defendant Rebecca’s motion for terminating sanctions against Defendant/Cross-Complainant Kenneth Gray. The Court ordered the answer and cross-complaint of Kenneth Gray stricken.

On March 25, 2021, default was entered as to Defendant Kenneth Gray.

ANALYSIS:

Default has not been entered as to Mowgly Unlimited, Inc. and KAG Consulting, Inc.

The parties previously stated that corporate officer of the corporate defendants (Mowgly and KAG) declared that it is his “intent to have the Court simply strike the Answer and Cross-Complaint and enter defaults.” (See 09/29/2020 Minute Order.)

However, Plaintiff still needs to enter default against these defendants or dismiss these defendants before seeking default judgment against Defendant Gray. (Code Civ. Proc., § 579.)

Because Plaintiff has not entered default against Defendants Mowgly Unlimited, Inc. and KAG Consulting, Inc., the Court cannot enter default judgment in this case.

The request for entry of default judgment is DENIED without prejudice. Default has not been entered as to Defendants Mowgly Unlimited, Inc. and KAG Consulting, Inc.

Case Number: 19STCV21674    Hearing Date: March 04, 2021    Dept: 34

SUBJECT: Motion for Terminating Sanctions

Moving Party: Plaintiff/Cross-Defendant Rebecca Cooper

Resp. Party: None

The Court GRANTS the motion for terminating sanctions against Defendant Gray.

BACKGROUND:

On June 21, 2019, Plaintiff Rebecca Cooper commenced this action against Defendants Kenneth Gray, Mowgly Unlimited, Inc., and KAG Consulting, Inc. for (1) breach of written contract (stock sale agreement); and (2) breach of written contract (secured promissory note).

On June 21, 2019, Kenneth Gray, Mowgly Unlimited, Inc., KAG Consulting, Inc., and 21st Century Wellness, Inc. filed a cross-complaint against Plaintiff for (1) material misrepresentation in securities transaction; (2) breach of contract; (3) rescission; (4) conversion; (5) breach of fiduciary duty and constructive fraud negligent misrepresentation; (6) fraud; and (7) violation of Penal Code section 496(c).

On June 21, 2019, Kenneth Gray, Mowgly Unlimited, Inc., and KAG Consulting, Inc. filed an answer to the complaint.

On December 16, 2019, Defendant Mowgly Unlimited, Inc. filed a notice of stay of proceedings because it filed a voluntary Bankruptcy under Chapter 7 of the United States Bankruptcy Code.

On March 2, 2020, Defendant/Cross-Complainant Kenneth Gray filed a substitution of attorney, substituting his former counsel, Amy B. Lawrence, with himself.

On July 30, 2020, the Court granted the three motions to be relieved as counsel filed by Amy B. Lawrence, counsel for Mowgly Unlimited, Inc., KAG Consulting, Inc., and 21st Century Wellness, Inc.

On September 29, 2020, the Court denied Plaintiff/Cross-Defendant Rebecca Cooper’s motion to strike as to Defendant Gray and granted the motion to strike as to Mowgly Unlimited, Inc. and KAG Consulting, Inc.

On January 21, 2021, the Court granted Plaintiff/Cross-Defendant Rebecca Cooper’s motion to deem requests for admission admitted as to Defendant/Cross-Complainant Kenneth Gray.

On February 3, 2021, Plaintiff/Cross-Defendant Rebecca Cooper filed the instant motion for terminating sanctions against Defendant/Cross-Complainant Kenneth Gray.

ANALYSIS:

I. Motion for Terminating Sanctions

A. Legal Standard

Code of Civil Procedure section 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." (Id. at p. 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 Ca1.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." (Deyosupra,  84 Cal.App.3d at p. 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." (Id.) 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, 9711.)

"A trial court has broad discretion to impose discovery sanctions, but two facts are generally prerequisite to the imposition of nonmonetary sanctions . . . (1) absent unusual circumstances, there must be a failure to comply with a court order, and (2) the failure must be willful." (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327; but see Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1291 ["willfulness is no longer a requirement for the imposition of discovery sanctions."].)

B. Discussion

Plaintiff moves for terminating sanctions against Defendant Gray on the grounds that “Gray has failed to respond to discovery requests, failed to pay court ordered sanctions and has not appeared for any hearing or participated in this matter since Gray’s former counsel withdrew on July 30, 2020 frustrating Cooper’s ability to pursue this action and conduct discovery.” (Motion, p. 6:14-16.)

Plaintiff argues that “Gray’s Answer and Cross-Complaint should be stricken, and a default judgment should be entered against him as his actions not to participate in this lawsuit have been willful and intentional.” (Id. at p. 7:1-2.) Plaintiff maintains that “Gray’s failure to engage in this matter demonstrates his disrespect for the court and his intentional abuse of the discovery process.” (Id. at p. 7:10-11.) Plaintiff argues that “Gray has no intent to participate in this lawsuit based on his actions and the declaration signed on January 31, 2020 indicating that his Answer and Cross-Complaint should be stricken.” (Id. at p. 7:11-13.) Plaintiff asserts that “Gray’s failure to appear at any hearing or respond to any discovery since the execution of the aforementioned declaration confirms that Gray is willfully choosing not to engage in this lawsuit.” (Id. at p. 7:13-15.)

Defendant Gray has failed to oppose this motion. Defendant Gray also failed to oppose Plaintiff’s previous motion to strike the answer and motion to deem the requests for admission admitted.

The Court finds that Defendant Gray is willfully deciding to not engage in this action based on his actions of failing to appear at hearings and failing to respond to discovery. Defendant Gray’s actions warrant the requested terminating sanctions against Defendant Gray. Therefore, terminating sanctions in the form of striking the Answer and Cross-Complaint of Defendant Gray is justified here. (See Code Civ. Proc., § 2023.030(d); Collison & Kaplan, supra, 21 Cal.App.4th at p. 1620.)

The Court GRANTS Plaintiff’s motion for terminating sanctions and strikes Defendant’s answer and cross-complaint.  Plaintiff is to enter default pursuant to Code with the Clerk’s office.

The Court schedules an OSC re Entry of Default Judgment for April __, 2021.

Case Number: 19STCV21674    Hearing Date: January 21, 2021    Dept: 34

SUBJECT: Motion to Deem Requests for Admission Admitted

Moving Party: Plaintiff/Cross-Defendant Rebecca Cooper

Resp. Party: None

The Court GRANTS the motion to deem requests for admission admitted.

The Court GRANTS the request for sanctions against Defendant Gray in the amount of $1,935.00.

BACKGROUND:

On June 21, 2019, Plaintiff Rebecca Cooper commenced this action against Defendants Kenneth Gray, Mowgly Unlimited, Inc., and KAG Consulting, Inc. for (1) breach of written contract (stock sale agreement); and (2) breach of written contract (secured promissory note).

On June 21, 2019, Kenneth Gray, Mowgly Unlimited, Inc., KAG Consulting, Inc., and 21st Century Wellness, Inc. filed a cross-complaint against Plaintiff for (1) material misrepresentation in securities transaction; (2) breach of contract; (3) rescission; (4) conversion; (5) breach of fiduciary duty and constructive fraud negligent misrepresentation; (6) fraud; and (7) violation of Penal Code section 496(c).

On June 21, 2019, Kenneth Gray, Mowgly Unlimited, Inc., and KAG Consulting, Inc. filed an answer to the complaint.

On December 16, 2019, Defendant Mowgly Unlimited, Inc. filed a notice of stay of proceedings because it filed a voluntary Bankruptcy under Chapter 7 of the United States Bankruptcy Code.

On March 2, 2020, Defendant/Cross-Complainant Kenneth Gray filed a substitution of attorney, substituting his former counsel, Amy B. Lawrence, with himself.

On July 30, 2020,the Court granted the three motions to be relieved as counsel filed by Amy B. Lawrence, counsel for Mowgly Unlimited, Inc., KAG Consulting, Inc., and 21st Century Wellness, Inc.

On September 29, 2020, the Court denied Plaintiff/Cross-Defendant Rebecca Cooper’s motion to strike as to Defendant Gray and granted the motion to strike as to Mowgly Unlimited, Inc. and KAG Consulting, Inc.

On December 22, 2020, Plaintiff/Cross-Defendant Rebecca Cooper filed the instant motion to deem requests for admission admitted as to Defendant/Cross-Complainant Kenneth Gray.

ANALYSIS:

I. Motion to Deem Requests for Admission Admitted

A. Legal Standard

For a motion to compel, all a propounding party must show is that it properly served its discovery requests, that the time to respond has expired, and that the party to whom the requests were directed failed to provide a timely response. (See Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905 906.) Indeed, "[o]nce [a party] 'fail[ed] to serve a timely response,' the trial court had authority to grant [opposing party's] motion to compel responses." (Sinaiko Healthcare Counseling, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 405.)

Code of Civil Procedure requires a response from the party to whom the request for admissions is directed within 30 days after service of the request for admissions. (Code Civ. Proc., § 2033.250(a).) If the party fails to serve a timely response, “the party to whom the requests for admission are directed waives any objection to the requests.” (Code Civ. Proc., § 2033.280(a).) The requesting party may then “move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for monetary sanction under Chapter 7.” (Code Civ. Proc., § 2033.280(b).)

A motion to deem admitted requests for admissions lies based upon a showing of failure to respond timely. (Code Civ. Proc., §2033.280(b); Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395, disapproved on other grounds by Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 983; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2020) ¶ 8:1370.) Requests for admissions must be deemed admitted where no responses in substantial compliance were served before the hearing. (Code Civ. Proc., §2033.280(c); Edmon & Karnow, supra, at ¶ 8:1375.)

A court will deem requests admitted, “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.” (Code Civ. Proc., § 2033.280(c).)

“It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.” (Code Civ. Proc., § 2033.280(c).)

B. Discussion

1. Deem Requests for Admission Admitted

Plaintiff/Cross-Defendant asserts that on October 13, 2020, she served Defendant/Cross-Complainant Kenneth Gray with Requests for Admission, Set No. One. (RFA MPA, p. 1:22-23.) Plaintiff explains that Defendant/Cross-Complainant Kenneth Gray’s “deadline to respond to Requests for Admission, Set One was November 17, 2020.” (Id. at p. 1:23-24.) However, Plaintiff argues, “no responses to Requests for Admission, Set One have been received as of the date of the drafting of this Motion.” (Id. at p. 1:24-25, citing Kennedy Decl., ¶ 5.)

Plaintiff/Cross-Defendant argues that “since GRAY has failed to serve any response whatsoever, COOPER moves the Court through this Motion for an order that the genuineness of any documents and the truth of any matters specified in the Requests be deemed admitted, as well as for monetary sanctions.” (Id. at p. 4:14-16.)

This motion is unopposed. The Court finds that Plaintiff/Cross-Defendant is entitled to an order that deems admitted the truth of the matters specified in the requests for admission because Defendant/Cross-Complainant Kenneth Gray has failed to produce responses to these discovery requests.

The Court GRANTS Plaintiff/Cross-Defendant’s motion to deem requests for admission admitted.

2. Sanctions

Plaintiff/Cross-Defendant moves for sanctions against Defendant/Cross-Complainant Kenneth Gray in the amount of $3,997.50. (Motion, p. 2:10-15.) Plaintiff/Cross-Defendant’s counsel declares that her hourly rate is $375.00, she spent 4.5 hours on this motion, incurred $60.00 in filing fees, and expects to incur additional 3 hours reviewing the opposition and preparing a reply, and additional 3 hours traveling to/from and attending the hearing. (Kennedy Decl., ¶ 5.)

The Court finds that Plaintiff/Cross-Defendant is entitled to seek sanctions against Defendant/Cross-Complainant Kenneth Gray. However, the amount of sanctions sought is unreasonable as there was no opposition to review or a reply to draft. Further, the hearing on this motion will likely not take 3 hours, as it is unopposed. Utilizing a lodestar approach, and in view of the totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motions is $1,935.00 (calculated as 5.0 hours at $375.00 per hour plus $60.00 filing fee).

Therefore, the Court GRANTS Plaintiff/Cross-Defendant’s request for sanctions against Defendant/Cross-Complainant Kenneth Gray in the amount of $2,122.50.

Case Number: 19STCV21674    Hearing Date: September 29, 2020    Dept: 34

SUBJECT: Motion to Strike

Moving Party: Plaintiff/Cross-Defendant Rebecca Cooper

Resp. Party: None

The motion to strike is DENIED as to Defendant Gray and is GRANTED as to Mowgly Unlimited, Inc. and KAG Consulting, Inc.

BACKGROUND:

On June 21, 2019, Plaintiff Rebecca Cooper commenced this action against Defendants Kenneth Gray, Mowgly Unlimited, Inc., and KAG Consulting, Inc. for (1) breach of written contract (stock sale agreement); and (2) breach of written contract (secured promissory note).

On June 21, 2019, Kenneth Gray, Mowgly Unlimited, Inc., KAG Consulting, Inc., and 21st Century Wellness, Inc. filed a cross-complaint against Plaintiff for (1) material misrepresentation in securities transaction; (2) breach of contract; (3) rescission; (4) conversion; (5) breach of fiduciary duty and constructive fraud negligent misrepresentation; (6) fraud; and (7) violation of Penal Code section 496(c).

On June 21, 2019, Kenneth Gray, Mowgly Unlimited, Inc., and KAG Consulting, Inc. filed an answer to the complaint.

On December 16, 2019, Defendant Mowgly Unlimited, Inc. filed a notice of stay of proceedings because it filed a voluntary Bankruptcy under Chapter 7 of the United States Bankruptcy Code.

On March 2, 2020, Defendant/Cross-Complainant Kenneth Gray filed a substitution of attorney, substituting his former counsel, Amy B. Lawrence, with himself.

On July 30, 2020, the Court granted the three motions to be relieved as counsel filed by Amy B. Lawrence, counsel for Mowgly Unlimited, Inc., KAG Consulting, Inc., and 21st Century Wellness, Inc.

On August 26, 2020, Plaintiff/Cross-Defendant Rebecca Cooper filed the instant motion to strike Defendants/Cross-Complainants Kenneth Gray, Mowgly Unlimited, Inc. and KAG Consulting, Inc.’s answer and cross-complaint; and Cross-Complainant 21st Century Wellness, Inc.’s cross-complaint.

ANALYSIS:

I. Motion to Strike

A. Legal Standard

"Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof . . . .” (Code Civ. Pro., § 435, subd. (b)(1).) "The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court." (Code Civ. Pro., § 436.)

“The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice." (Code Civ. Pro., § 437, subd. (a).)

B. Discussion

Plaintiff/Cross-Defendant moves to strike Defendants/Cross-Complainants Kenneth Gray, Mowgly Unlimited, Inc. and KAG Consulting, Inc.’s answer and cross-complaint; and Cross-Complainant 21st Century Wellness, Inc.’s cross-complaint. Plaintiff/Cross-Defendant argues that “it is the intent of all parties that Answer and Cross-Complaint of GRAY, KAG and MOWGLY as well as the Cross-Complaint of 21st CENTURY are all stricken.” (Id. at p. 4:6-7.) Plaintiff/Cross-Defendant asserts that “therefore, the default appears on the face of the pleadings as the named parties no longer wish to proceed in this matter.” (Id. at p. 4:7-9.)

1. Striking the Answer and Cross-Complaint of Kenneth Gray (Individual Defendant/Cross-Complainant)

Plaintiff/Cross-Defendant asserts that the answer and cross-complaint of Kenneth Gray should be stricken because in Gray’s declaration, he confirms his intent to substitute his attorney to represent himself as an individual and in his capacity to represent himself, Gray confirms his intent for the Court to strike the answer and cross-complaint. (Motion, p. 4:12-18.)

Plaintiff/Cross-Defendant provides the declaration in support of the motions to be relieved as counsel. There, Defendant/Cross-Complainant Gray signs his counsel’s declaration, which states:

“As we discussed, you no longer want us to pursue the cross-complaint in the above-referenced matter. You are executing your own Substitution of Attorney form to represent yourself personally, and you understand you cannot represent the limited liability companies and do not want to retain new counsel. It is your intent to have the Court simply strike the Answer and Cross-Complaint and enter defaults.” (Kennedy Decl., ¶¶ 3-4, Ex. A.)

Defendant/Cross-Complainant Gray has not opposed this motion so it might appear that it is his intent for “the Court to simply strike the Answer and Cross-Complaint and enter defaults.” (See ibid.)

However, Defendant Gray has also not filed his own Substitution of Attorney form to represent himself.

To the pro per litigant, “interrogatories, requests for admissions, law and motion proceedings, and the like” are “baffling devices.” (Bruno v. Superior Court (1990) 219 Cal.App.3d 1359, 1363, quoting Burley v. Stein (1974) 40 Cal.App.3d 752, 755, fn. 3.) Therefore, it is not clear to the Court that Defendant Gray wishes the Court to strike his answer and enter default. Certainly, there is nothing on the face of the pleading to show that this is Defendant Gray’s intent.

The Court DENIES Plaintiff/Cross-Defendant’s motion to strike the answer and cross-complaint of Kenneth Gray.

2. Striking the Answer of Mowgly Unlimited, Inc. and KAG Consulting, Inc. and Cross-Complaint of Mowgly Unlimited, Inc., KAG Consulting, Inc., and 21st Century Wellness, Inc. (Corporate Defendants/Cross-Complainants)

Under “a long-standing common law rule of procedure, a corporation, unlike a natural person, cannot represent itself before courts of record in propria persona, nor can it represent itself through a corporate officer, director or other employee who is not an attorney. It must be represented by licensed counsel in proceedings before courts of record.” (CLD Const., Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145.) As a result, a pleading filed by a corporation in pro per may be stricken; however, as the defect is considered curable, the errant entity should be granted leave to amend. (Id. at p. 1149.)

Here, Mowgly Unlimited, Inc., KAG Consulting, Inc., and 21st Century Wellness, Inc. are corporate defendants/cross-complainants who are no longer represented by counsel. Further, the corporate officer of these defendants has declared that it is his “intent to have the Court simply strike the Answer and Cross-Complaint and enter defaults.” (Kennedy Decl., ¶¶ 3-4, Ex. A.)

Defendants/Cross-Complainants Mowgly Unlimited, Inc., KAG Consulting, Inc. and Cross-Complainant 21st Century Wellness, Inc. have not opposed this motion, nor have they indicated that the defect of not being represented can be curable.

Therefore, the Court GRANTS Plaintiff/Cross-Defendant’s motion to strike the answer of Mowgly Unlimited, Inc. and KAG Consulting, Inc. and Cross-Complaint of Mowgly Unlimited, Inc., KAG Consulting, Inc., and 21st Century Wellness, Inc.

Case Number: 19STCV21674    Hearing Date: July 30, 2020    Dept: 34

SUBJECT: (3) Motions to Be Relieved as Counsel

Moving Party: Amy B. Lawrence, counsel for Cross-Complainant 21st Century Wellness, Inc., Defendant KAG Consulting, Inc., Defendant Mowgly Unlimited, Inc.

Resp. Party: None

The motions to be relieved as counsel are GRANTED.

BACKGROUND:

On June 21, 2019, Plaintiff Rebecca Cooper commenced this action against Defendants Kenneth Gray, Mowgly Unlimited, Inc., and KAG Consulting, Inc. for (1) breach of written contract (stock sale agreement); and (2) breach of written contract (secured promissory note).

On June 21, 2019, Kenneth Gray, Mowgly Unlimited, Inc., KAG Consulting, Inc., and 21st Century Wellness, Inc. filed a cross-complaint against Plaintiff for (1) material misrepresentation in securities transaction; (2) breach of contract; (3) rescission; (4) conversion; (5) breach of fiduciary duty and constructive fraud negligent misrepresentation; (6) fraud; and (7) violation of Penal Code section 496(c).

On December 16, 2019, Defendant Mowgly Unlimited, Inc. filed a notice of stay of proceedings because it filed a voluntary Bankruptcy under Chapter 7 of the United States Bankruptcy Code.

On February 20, 2020, Amy B. Lawrence, counsel for Mowgly Unlimited, Inc., KAG Conslulting, Inc., and 21st Century Wellness, Inc. filed the instant three motions to be relieved as counsel.

ANALYSIS:

An attorney moving to be relieved as counsel under California Code of Civil Procedure section 284(2) must meet the requirements set out in California Rules of Court, rule 3.1362. To comply with rule 3.1362, the moving party must submit the following forms: (1) Notice of Motion and Motion to be Relieved as Counsel; (2) Declaration in Support of Attorney's Motion to be Relieved as Counsel; and (3) Order Granting Attorney's Motion to be Relieved as Counsel. (Cal. Rules of Court, rule 3.1362(a), (c), (e).) The moving party must serve the aforementioned forms on the client and all other parties who have appeared in the case. (Cal. Rules of Court, rule 3.1362(d).) Further, when the client is served by mail, the attorney's declaration must show that the client's address was confirmed within the last 30 days and how it was confirmed. (Id.) Absent a showing of resulting prejudice, an attorney’s request for withdrawal should be granted. (People v. Prince (1968) 268 Cal.App.2d 398, 406.)

Counsel’s motions comply with all of the requirements of California Rules of Court, Rule 3.1362, in that Counsel provided three notices of motion and motions to be relieved as counsel; orders granting attorney’s motion to be relieved as counsel; and declarations in support of the motions to be relieved as counsel. Additionally, Counsel’s clients were notified by mailing the motion and supporting documents to their currently known address and by e-mail. (See Declarations, No. 3(b)(2)(d).) Counsel also filed proofs of service demonstrating that she served all other parties who have appeared in the case. These motions have also not been opposed by any party to the case.

The motions to be relieved as counsel are GRANTED.

Case Number: 19STCV21674    Hearing Date: March 17, 2020    Dept: 34

SUBJECT: (3) Motions to Be Relieved as Counsel

Moving Party: Amy B. Lawrence, counsel for Cross-Complainant 21st Century Wellness, Inc., Defendant KAG Consulting, Inc., Defendant Mowgly Unlimited, Inc.

Resp. Party: None

The motions to be relieved as counsel are GRANTED.

BACKGROUND:

On June 21, 2019, Plaintiff Rebecca Cooper commenced this action against Defendants Kenneth Gray, Mowgly Unlimited, Inc., and KAG Consulting, Inc. for (1) breach of written contract (stock sale agreement); and (2) breach of written contract (secured promissory note).

On June 21, 2019, Kenneth Gray, Mowgly Unlimited, Inc., KAG Consulting, Inc., and 21st Century Wellness, Inc. filed a cross-complaint against Plaintiff for (1) material misrepresentation in securities transaction; (2) breach of contract; (3) rescission; (4) conversion; (5) breach of fiduciary duty and constructive fraud negligent misrepresentation; (6) fraud; and (7) violation of Penal Code section 496(c).

On December 16, 2019, Defendant Mowgly Unlimited, Inc. filed a notice of stay of proceedings because it filed a voluntary Bankruptcy under Chapter 7 of the United States Bankruptcy Code.

On February 20, 2020, Amy B. Lawrence, counsel for Mowgly Unlimited, Inc., KAG Conslulting, Inc., and 21st Century Wellness, Inc. filed the instant three motions to be relieved as counsel.

ANALYSIS:

An attorney moving to be relieved as counsel under California Code of Civil Procedure section 284(2) must meet the requirements set out in California Rules of Court, rule 3.1362. To comply with rule 3.1362, the moving party must submit the following forms: (1) Notice of Motion and Motion to be Relieved as Counsel; (2) Declaration in Support of Attorney's Motion to be Relieved as Counsel; and (3) Order Granting Attorney's Motion to be Relieved as Counsel. (Cal. Rules of Court, rule 3.1362(a), (c), (e).) The moving party must serve the aforementioned forms on the client and all other parties who have appeared in the case. (Cal. Rules of Court, rule 3.1362(d).) Further, when the client is served by mail, the attorney's declaration must show that the client's address was confirmed within the last 30 days and how it was confirmed. (Id.) Absent a showing of resulting prejudice, an attorney’s request for withdrawal should be granted. (People v. Prince (1968) 268 Cal.App.2d 398, 406.)

Counsel’s motions comply with all of the requirements of California Rules of Court, Rule 3.1362, in that Counsel provided three notices of motion and motions to be relieved as counsel; orders granting attorney’s motion to be relieved as counsel; and declarations in support of the motions to be relieved as counsel. Additionally, Counsel’s clients were notified by mailing the motion and supporting documents to their currently known address and by e-mail. (See Declarations, No. 3(b)(2)(d).) Counsel also filed proofs of service demonstrating that she served all other parties who have appeared in the case. These motions have also not been opposed by any party to the case.

The motions to be relieved as counsel are GRANTED. Counsel is to inform its (now former) clients that trial remains as previously-scheduled.    

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