ROSA COJULUN VS LIRIA MELENDEZ ET AL

Tentative Rulings

Case Number: ****6279 Hearing Date: September 7, 2021 Dept: 74

****6279 ROSA COJULUN vs LIRIA MELENDEZ

Defendant’s Motion for Terminating Sanctions or, in the alternative, Contempt

TENTATIVE RULING: The request for terminating sanctions or a contempt finding are DENIED. Defendant’s request for additional monetary sanctions is GRANTED because the court finds this motion was brought with substantial justification at the time it was filed. Plaintiff and his attorney of record, jointly and severally, are ordered to pay sanctions to Defendant, by and through counsel of record, in the amount of $1,750 (5 hours at $350/hour), within twenty days. These sanctions are in addition to sanctions previously imposed.

Once a party or witness has been ordered to attend a deposition, or to answer discovery, or to produce documents, more severe sanctions are available for continued refusal to make discovery. Willful “disobedience” must be shown to establish contempt. But for purposes other than contempt, “disobedience” does not require a showing of willfulness. Noncompliance with the court’s order is all that need be shown. If a party fails to obey a discovery order, the court may impose whatever sanctions are just.

It is undisputed that while substantially late, plaintiff has complied with the non-monetary portions of the prior court orders. The request for terminating sanctions or a contempt finding are DENIED. Defendant’s request for additional monetary sanctions is GRANTED because the court finds this motion was brought with substantial justification at the time it was filed.

Case Number: ****6279    Hearing Date: March 25, 2021    Dept: 74

****6279 ROSA COJULUN VS LIRIA MELENDEZ

Defendant Liria Melendez’ Unopposed Motion to Compel Responses to Special Interrogatories and Request for Sanctions

TENTATIVE RULING:  The Motion is GRANTED. The motion to compel responses to request for production of documents (set one) is GRANTED.  Defendant Javier Perez is ordered to serve verified, code compliant responses within 20 days.  All objections are deemed waived.  Defendant Liria Melendez’ request for sanctions is GRANTED.  Sanctions in the amount of $1,050 (3 hrs at $350/hour) are imposed, jointly and severally, against Defendant Javier Perez and his counsel, payable within 20 days.

Case Number: ****6279    Hearing Date: December 15, 2020    Dept: 74

****6279 ROSA COJULUN VS LIRIA MELENDEZ

Defendant’s Motion for Reconsideration

TENTATIVE RULING: The motion is DENIED.

Defendant’s Request for Judicial Notice

Defendant’s request for judicial notice is GRANTED. The court takes judicial notice of the contents of the official court file in this matter. Evid. Code ;452.

Motion for Reconsideration

Any party affected by a court order may request a reconsideration of that order. (Code Civ. Proc. ; 1008(a).) The propounding party must file an application within 10 days following service of the written notice of entry of the order. (Id.) A request to reconsider the matter must consider “new or different facts, circumstances, or law.” (Id.) The judge that granted or denied the order must hear the reconsideration. (Id.) The party seeking the reconsideration must state by affidavit “what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (Id.)

When a court granted or denied a prior application for an order in whole or in part, the original party making the application may make an additional application for the same order when it based upon “new or different facts, circumstances, or law in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (Code Civ. Proc. ; 1008(b).) If a party fails to comply with CCP ; 1008(b), the court may revoke or set aside on ex parte motion any order following the application. (Id.)

In this case, the Court ruled on Defendant’s motion for summary adjudication on August 25, 2020. Defendant then filed this instant motion on September 8, 2020, which is more than ten days after entry of order. As Defendant is the moving party, he was directed to give notice and was thereby on notice as to the outcome of his motion. (August 25, 2020 Minute Order.) As such this motion is untimely. An application that fails to comply with CCP ; 1008 cannot be considered. (Code Civ. Proc. ; 1008(e).)

Defendant’s motion for reconsideration is DENIED.

Case Number: ****6279    Hearing Date: July 20, 2020    Dept: 74

****6279 ROSA COJULUN vs LIRIA MELENDEZ

Defendant Javier Perez’ Motion for Summary Adjudication

TENTATIVE RULING: The motion is DENIED.

Request for Judicial Notice

Defendant’s request for judicial notice is denied. ;Defendant failed to specify in writing the part of the court file(s) it seeks to be judicially noticed and to make all requests for judicial notice in a separate document listing the specific items for which notice. CRC Rule 3.1306(c); CRC Rule 3.1113(1); Evid. Code ; 456.

Summary Adjudication

Perez moves for summary adjudication as to first and second causes of action of Plaintiff’s TAC on the grounds that the first and second causes of action have no merit because Plaintiff does not possess standing to bring the causes of action as each are time barred. Perez also argues for summary adjudication of Plaintiff’s third and fourth causes of action but failed to properly notice these issues. As such, the motion for summary adjudication of the 3^rd and 4^th causes of action is DENIED.

Defendant argues the first cause of action is barred by the statute of limitation. The court finds plaintiff’s claim is based on the same general sets of facts despite the references to various contracts may have changed over the course of filing amended complaints.

“An amended complaint is considered a new action for purposes of the statute of limitations only if the claims do not “relate back” to an earlier timely filed complaint. (Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 276, 125 Cal.Rptr.3d 540.) Under the relation-back doctrine, an amendment relates back to the original complaint if the amendment (1) rests on the same general set of facts; (2) involves the same injury; and (3) refers to the same instrumentality. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 408–409, 87 Cal.Rptr.2d 453, 981 P.2d 79.) An amended complaint relates back to an earlier complaint if the amended complaint is based on the same general set of facts, even if the plaintiff alleges a different legal theory or new cause of action.” (Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2016) 6 Cal.App.5th 1207, 1221–1222.)

Defendant’s motion for summary adjudication of the 1^st and 2^nd causes of action is DENIED.

Case Number: ****6279    Hearing Date: November 04, 2019    Dept: 74

****6279 ROSA COJULUN VS LIRIA MELENDEZ ET AL

Cross Complainant Liria Melendez’ Motion to Strike Javier Perez’ Answer to the Cross Complaint