Judge: Armen Tamzarian, Case: 21STCV42304, Date: 2023-02-28 Tentative Ruling

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Case Number: 21STCV42304    Hearing Date: February 28, 2023    Dept: 52

Plaintiff Rafael Ordaz’s Motions: (1) To Compel Discovery; (2) For Gag Order; and (3) To Enter Property Lien

Insufficient Notice of Hearing

            Plaintiff Rafael Ordaz filed three motions and a “response to cross-complaint and request for immediate sanctions for perjury.”  Because plaintiff is a state prisoner, he is unable to use the court’s reservation system to schedule hearing dates.  On January 5, 2023, the clerk set these motions to be heard on February 28 and served notice of the hearing date on plaintiff. 

            There is no proof of service, however, of the notice of hearing date on defendant Precillia Diaz.  “The general rule is that notice of motion must be given whenever the order sought may affect the rights of an adverse party.”  (McDonald v. Severy (1936) 6 Cal.2d 629, 631.)  The parties to a civil action are entitled to written notice of hearing dates.  (See Code Civ. Proc., §§ 1005, 1010; Cal. Rules of Court, rules 3.1110(b), 3.1112(a)(1).) 

            Plaintiff’s motion for a gag order does not state any hearing date.  Plaintiff’s other moving papers include the hearing date, time, and location—but plaintiff’s proofs of service state defendant Precillia Diaz was served by mail “on: 4-12-22.”  The hearings had not been scheduled yet.  It was not possible for plaintiff to serve notice of this hearing date in April.  There is no further proof of service on Diaz.  Plaintiff therefore has failed to show adequate notice to Diaz of this hearing. 

Lack of notice suffices as a reason to deny plaintiff’s motions.  The court exercises its discretion to rule on each motions’ merits. 

Motion to Compel Discovery

            Plaintiff Rafael Ordaz moves to compel defendant Precillia Diaz to respond to requests for production and produce documents.  When a party fails to timely respond to requests for production, the requesting party may move for an order compelling responses.  (Code Civ. Proc., § 2031.300(b).) 

            Plaintiff fails to establish the two fundamental facts necessary for this motion: that (1) he served requests for production on defendant, and (2) she failed to respond in time.  Plaintiff provides no admissible evidence of either of those facts.

A motion must be supported by admissible evidence.  “[M]atters set forth in memoranda of points and authorities are not evidence.”  (Brehm Communities v. Superior Court (2001) 88 Cal.App.4th 730, 735, internal quotations and alterations omitted.)  “In law and motion practice, factual evidence is supplied to the court by way of declarations.”  (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224.) 

A declaration must be signed under penalty of perjury.  (CCP § 2015.5.)  Plaintiff’s proof of service of this motion is an example of a valid declaration.  At the bottom, it states, “I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and that this declaration was executed on the date of 8-17-22, at San Diego, California.”  Plaintiff printed and signed his name on the lines below that. 

In contrast, in this motion plaintiff states facts on the first page, which is merely dated and signed.  The statements above it are not admissible evidence.  Plaintiff provided no sworn declaration stating any facts in support of his motion.

The motion is denied.         

Motion for Gag Order

Plaintiff Rafael Ordaz moves for a “gag order” against defendant Precillia Diaz to prohibit her from speaking about this case.  Such an order raises serious concerns about defendant’s constitutional right to freedom of speech.  “ ‘Orders which restrict or preclude a citizen from speaking in advance are known as “prior restraints,” and are disfavored and presumptively invalid.  Gag orders on trial participants are unconstitutional unless (1) the speech sought to be restrained poses a clear and present danger or serious and imminent threat to a protected competing interest; (2) the order is narrowly tailored to protect that interest; and (3) no less restrictive alternatives are available.”  (Maggi v. Superior Court (2004) 119 Cal.App.4th 1218, 1225.)

Plaintiff fails to meet this heavy burden.  He again submitted no admissible evidence.  In this motion, plaintiff states facts on the first page, which is merely signed, “Respectfully submitted, Rafael Ordaz.”  It is not a declaration verified under penalty of perjury under the laws of the State of California. 

The motion is denied.

Motion to Enter Property Lien

            Plaintiff moves for the court to enter a $10,000 lien on defendant’s property.  He provides no legal basis for doing so.  Plaintiff must either: (1) establish grounds for a lien as a provisional remedy of some kind (see, e.g., Code Civ. Proc., § 482.010 [attachment]; § 527 [preliminary injunction]); or (2) achieve a money judgment against defendant (see Code Civ. Proc., § 577).

Both in this motion and in his “response to cross-complaint and request for immediate sanctions for perjury,” plaintiff seeks sanctions against defendant for purported perjury.  Even if plaintiff proved defendant lied under oath, a party is generally not subject to monetary sanctions for lying in a civil action.  Plaintiff fails to set forth any valid basis for awarding sanctions.

            The motion is denied.