Judge Lee S. Arian, Case Number: 18STCV01, Date: 2023-12-04 Tentative Ruling

MOVING PARTY: Defendant Judith Swank and Judith Swank as Administrator and Trustee of the Estate of Jack Swank (“Swank”)

This action arises from a motor vehicle accident which occurred on November 28, 2016. On October 19, 2018, Plaintiff Stephen Harris (“Plaintiff”) filed a complaint against Defendants Jack Swank (“Decedent”) and Does 1 through 100, alleging a single cause of action for negligence.

On February 1, 2023, Plaintiff filed a motion for an order substituting Judith Lorraine Swank (“Swank”) as a defendant in this action due to the death of Decedent. On June 22, 2023, the Honorable Michelle C. Kim, sitting in Department 31 of this Court, denied Plaintiff’s motion to substitute Swank in place of Decedent without prejudice.

On June 26, 2023, Plaintiff filed a motion to substitute Swank in place of Decedent and, on August 29, 2023, the Honorable Michelle C. Kim, sitting in Department 31 of this Court, granted Plaintiff’s motion. The Court ordered Plaintiff to serve Swank with an amended complaint within 20 days. (08/29/23 Minute Order.)

On September 15, 2023, Ms. Swank filed a Demurrer to Plaintiff’s Complaint (the “Demurrer”).

On September 19, 2023, after hearing oral argument and taking the matter under submission on September 18, 2023, the Honorable Michelle C. Kim, sitting in Department 31 of this Court, granted Decedent’s motion to compel the depositions of Plaintiff’s experts. (09/19/23 Minute Order.) The Court granted Decedent’s request to compel the depositions of Steven Dunbar, D.C. and Babak Samimi, M.D. (Id.) The Court, however, denied Decedent’s request for sanctions on the grounds that the notice of motion did not specify the type of sanction sought. (Id.)

On September 20, 2023, Swank filed and served a Notice of Ruling as to the Court’s September 19, 2023 order.

On September 25, 2023, Plaintiff filed an “Amended Complaint” asserting a single cause of action for Negligence.

On September 29, 2023, Swank filed this Amended Demurrer to the “Amended Complaint”.

On October 2, 2023, Plaintiff filed and served a Notice of Appeal which states that Plaintiff was appealing the collateral order doctrine (the “1d Notice”). The 1d Notice did not include the date the purported order was entered.

On October 3, 2023, Swank filed and served a peremptory challenge as to the Honorable Michelle C. Kim, which was granted. This matter was then transferred to Department 27 at the Spring Street Courthouse.

On October 5, 2023, Plaintiff filed the operative First Amended Complaint (“FAC”) against Swank and Does 1 through 10, alleging a single cause of action for negligence.

On October 25, 2023, Swank filed and served her motion for terminating sanctions (the “Motion”) on the grounds that Plaintiff objected to the depositions of Plaintiff’s experts in defiance of this Court’s September 19, 2023 order.[1] The Motion also requests monetary sanctions against Plaintiff and Plaintiff’s attorney of record in the sum of $2,614.86.

On October 27, 2023, Swank filed and served a Brief re: Plaintiff’s Notice of Appeal.

On October 31, 2023, Plaintiff filed and served a Notice of Appeal (the “2d Notice”), which indicates that Plaintiff is appealing the Court’s September 19, 2023 order.

On November 20, 2023, Plaintiff purported to file an opposition to the Motion; however, such filing only includes a caption page and does not contain a memorandum of points and authorities or a declaration in support thereof.

On November 21, 2023, Swank filed a reply brief to the opposition to the Motion.

On November 28, 2023, Plaintiff filed an opposition brief to the Motion. Plaintiff’s November 28, 2023 filing contains a memorandum of points and authorities and a declaration in support thereof. (The Court has discretion to consider a late-filed paper. (Cal. Rules of Court, Rule 3.1300, subd. (d).) Although filed and served late, the Court will consider Plaintiff’s November 28, 2023 opposition in its entirety.)

At this time, then, the Court is considering Swank’s Motion and Swank’s Demurrer.

“The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) “Discovery 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.” (Ibid.) “[C]ontinuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse.” (Ibid.) Where discovery violations are “willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with discovery rules, the trial court is justified in imposing the ultimate sanction.” (Ibid.) A trial court has broad discretion to impose discovery sanctions, but two facts are generally a prerequisite to the imposition of nonmonetary sanctions. (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.) Where discovery sanctions are requested against a party, there must be a failure to comply with a court order and the failure must be willful. (Ibid.)

California Code of Civil Procedure, Section 2023.030 provides that “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” A misuse of the discovery process “include[s] . . . [d]isobeying a court order to provide discovery.” (Doppes v. Bentley Motors, Inc., supra, 174 Cal.App.4th 967, 991.)

The Court GRANTS Swank’s request for judicial notice of Decedent’s motion to compel the deposition of Plaintiff’s experts and the Court’s September 19, 2023 order. (Evid Code, §§ 452(d) and 453.)

In opposition to the Motion, Plaintiff contends that this matter should be stayed, or the Motion should be denied due to the pending appeal.

“Generally, discovery orders are not appealable.” (Aixtron, Inc. v. Veeco Instruments Inc. (2020) 52 Cal.App.5th 360, 387.) “Instead, the challenge to a discovery order must await appeal from a final judgment.” (Ibid.) “[C]ourts have recognized two general exceptions to the one final judgment rule.’ (Ibid.) “Even though issues remain for further determination, a direct appeal may be taken from (1) a collateral final judgment or order, or (2) a judgment that is final as to a party.” (Ibid.)

However, “[t]he 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.” (Code Civ. Proc., § 916.)

The Court finds that Plaintiff is appealing a discovery order of this Court and such order is directly related to the Motion. Swank seeks terminating sanctions due to Plaintiff’s non-compliance with the Court’s September 19, 2023 order. (Dewey Decl., ¶¶ 4-10.) The Court’s September 19, 2023 order is a discovery-related order which compelled Plaintiff to produce experts for deposition. It follows that the Motion is affected by Plaintiff appealing the Court’s September 19, 2023 order. The Motion is directly related to the subject matter of the Court’s September 19, 2023 order.

Due to the pending appeal of the Court’s September 19, 2023 order, the Court cannot rule on the Motion. To do so would possibly subject the parties to inconsistent rulings depending on the outcome of the appeal.

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.)

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.)

At the outset, the Court notes there is a lack of clarity as to the pleading at issue. Plaintiff has submitted at least three complaints. (See 10/19/18 Complaint; 9/25/23 “Amended Complaint”; 10/5/23 “First Amended Complaint”.) (It is not clear whether the September 25, 2023 “Amended Complaint” is valid given that it appears as “Received” and not “Filed” in the electronic case file.)

Notwithstanding the lack of clarity, the Court observes the amended complaints each appear to name Ms. Swank in her individual capacity rather than clearly as the representative of Decedent. This very issue forms one of four arguments Ms. Swank raises in support of her Demurrer.

Given the muddled record here in light of Plaintiff’s filings of several complaints and given that the last demurrer was brought on September 29, 2023, before the First Amended Complaint, the Court believes the record would be most clear if Plaintiff were to file a Second Amended Complaint clearly setting forth the basis for bringing action against Swank, i.e., as a representative of Decedent. The Court grants leave to file such an amended complaint without now ruling on the other grounds raised by Defendant for her Demurrer.

Further, the Court is not staying the action in relation to further proceedings relating to the sufficiency of the Second Amended Complaint. As discussed above, the appeal causing the Court to stay the discovery motion is not related to the issues surrounding the sufficiency or validity of plaintiff’s pleading.[2]

The Motion is taken off-calendar due to the pending appeal. The request for sanctions is denied.

The Demurrer is granted and leave to file a second amended complaint is granted. Such complaint is to be filed within 20 days of this order.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Lee S. Arian

Judge of the Superior Court

[1] Swank contends that the Court granted the motion to compel the deposition of Plaintiff’s experts on September 18, 2023; however, this is incorrect as the Court granted the motion on September 19, 2023.

[2] The Court notes that in regard to the Demurrer it has heard various arguments regarding whether or not Defendant has been served and whether or not Defendant has, in any event, made a general appearance in this action. Unfortunately, for the second time, neither party has provided the Court with the specific evidence on that issue that both parties have mentioned, namely transcripts of hearings on September 18, 2023, and September 27, 2023. Assuming there will be another demurrer, this time to the Second Amended Complaint, the Court strongly suggests that if evidence supports a party’s argument, that party provide the Court with that evidence.