Judge: Melvin D. Sandvig, Case: 22CHCV00779, Date: 2024-01-02 Tentative Ruling

Counsel wishing to submit on a tentative ruling may inform the clerk or courtroom assisant in North Valley Department F47, 9425 Penfield Ave., Chatsworth, CA 91311, at (818) 407-2247.  Please be aware that unless all parties submit, the matter will still be called for hearing and may be argued by any appearing/non-submitting parties. If the matter is submitted on the court's tentative ruling by all parties, counsel for moving party shall give notice of ruling. This may be done by incorporating verbatim the court's tentative ruling. The tentative ruling may be extracted verbatim by copying and specially pasting, as unformatted text, from the Los Angeles Superior Court’s website, http://www.lasuperiorcourt.org. All hearings on law and motion and other calendar matters are generally NOT transcribed by a court reporter unless one is provided by the party(ies).

Case Number: 22CHCV00779    Hearing Date: January 30, 2024    Dept: F47

Dept. F47

Date: 1/30/24

Case #22CHCV00779

 

MOTION TO BE RELIEVED AS COUNSEL

 

Motion filed on 12/13/23.

 

MOVING ATTORNEY:  Joseph Kellener

CLIENT: Plaintiff Sergio Escobar

 

RELIEF REQUESTED: An order relieving Joseph Kellener as counsel for Plaintiff Sergio Escobar in this action. 

 

RULING: The motion is placed off calendar. 

 

On 12/13/23, attorney Joseph Kellener filed this motion to be relieved as counsel for Plaintiff Sergio Escobar in this action.  The hearing was originally scheduled for 7/17/24.  On 1/2/24, the Court rescheduled the hearing on this motion to 1/30/24.  (See 1/2/24 Minute Order, p.3).  Plaintiff’s counsel (Joseph Kellner) was ordered to give notice.  Id.

 

No proof of service has been filed for the motion.  (See CRC 3.1300(c) “Proof of service of the moving papers must be filed no later than five court days before the time appointed for the hearing.”).  Even if the motion, which gives notice of the original hearing date, had been served, Plaintiff’s counsel has not filed evidence that he gave notice that the hearing on the motion was advanced from 7/17/24 to 1/30/24.  No opposition or other response to the motion has been filed to cure the defect in notice.  Therefore, the matter is placed off calendar.     

 

Dept. F47

Date: 1/30/24                                                                

Case #22CHCV00779

 

2 MOTIONS TO COMPEL

(Form Interrogatories, Set 1 & Requests for Production, Set 1)

 

Motions filed on 10/3/23.

 

MOVING PARTY: Defendant Richard Bogert

RESPONDING PARTY: Plaintiff Sergio Escobar

NOTICE: ok

 

RELIEF REQUESTED:

 

(1)   An order compelling Plaintiff Sergio Escobar to provide responses to Defendant Richard Bogert’s Form Interrogatories, Set 1.  Additionally, Defendant requests sanctions against Plaintiff and his counsel of record in the amount of $1,086.65; and

 

(2)   An order compelling Plaintiff Sergio Escobar to provide responses to Defendant Richard Bogert’s Requests for Production, Set 1.  Additionally, Defendant requests sanctions against Plaintiff and his counsel of record in the amount of $1,086.65;

 

RULING: The motions are granted, in part, and denied, in part, as set forth below. 

 

SUMMARY OF FACTS & PROCEDURAL HISTORY

 

This action arises out of dispute between a residential tenant, Plaintiff Sergio Escobar (Plaintiff), and his landlord, Defendant Richard Bogert (Defendant).  On 9/22/22, Plaintiff filed this action against Defendant for breach of warranty of habitability, breach of covenant of quiet enjoyment, nuisance, negligence, breach of contract and violation of LAMC 49.99.2.

 

On 1/17/23, Defendant served Plaintiff with Form Interrogatories, Set 1; Special Interrogatories, Set 1 and Requests for Production of Documents, Set 1.  (Glantz Decl., Ex.A).  Pursuant to Plaintiff’s counsel’s requests, Plaintiff was granted several extensions to respond to the discovery with the last extension expiring on 4/4/23.  (Glantz Decl., Ex.B).  When Plaintiff failed to serve responses by 4/4/23, Defendant inquired several times about the overdue responses noting that objections to the discovery had been waived.  (Glantz Decl., Ex.C-G).  Still, no responses were received.  (Glantz Decl.).

 

On 10/3/23, Defendant filed and served the instant motions seeking orders: (1) compelling Plaintiff  to provide responses to Defendant’s Form Interrogatories, Set 1, and imposing sanctions against Plaintiff and his counsel of record in the amount of $1,086.65; and (2) compelling Plaintiff  to provide responses to Defendant’s Requests for Production, Set 1, and imposing sanctions against Plaintiff and his counsel of record in the amount of $1,086.65.  The motions were originally scheduled for hearing on 1/24/24 and 1/25/24.  On 1/2/24, pursuant to oral stipulation, the hearings on the motions were advanced and reset for 1/30/24.  (See 1/2/24 Minute Order, p.3).  Plaintiff’s  counsel (responding party on this motion) was ordered to give notice.  Id.  Although no such notice has been filed, it is clear Plaintiff’s counsel had notice of the new hearing date.  Plaintiff has not opposed or otherwise responded to the motions.

 

ANALYSIS

 

Due to Plaintiff’s failure to provide responses to the Form Interrogatories and Requests for Production, Defendant is entitled to orders compelling responses without objections.  CCP 2030.290(a)-(b); CCP 2031.300(a)-(b). 

 

CCP 2023.040 provides:

“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”

 

Here, the notice of motion regarding Form Interrogatories and supporting memorandum of points and authorities request sanctions against “plaintiff and his counsel of record” and/or “plaintiff and his counsel” without naming a specific attorney.  (See Form Interrogatories Motion, p.2:6-8, p.6:21).  The notice of motion regarding Requests for Production requests sanctions against “plaintiff and his counsel of record;” however, the memorandum of points and authorities only requests sanctions against Plaintiff.  (See Requests for Production Motion, p.2:7-9, p.6:3).  The firm representing Plaintiff has at least two attorneys as listed on the complaint filed on behalf of Plaintiff.  Additionally, the memorandums of points and authorities in support of the motions state:

 

“Should plaintiff oppose this motion, defendant requests the Court impose monetary sanctions upon plaintiff and his counsel, jointly and severally, as there is no substantial justification for plaintiff to have avoided responded to discovery for over eight months.”

 

(See Form Interrogatories Motion, p.6:9-11; Requests for Production Motion, p.6:9-11). 

 

Based on the foregoing, it appears that sanctions are only sought, if the motions are opposed which these motions are not.  Minimally, the statement makes the request unclear.

 

CONCLUSION

 

The requests to compel responses to Form Interrogatories, Set 1, and Requests for Production, Set 1, are granted.  Responses without objections are due within 30 days.  Sanctions are denied.

 

The Court notes that Defendant’s counsel has failed to electronically bookmark the exhibits attached to the motion as required by CRC 3.1110(f)(4).  Failure to comply with this requirement in the future may result in papers not being considered, matters being continued so that papers may be resubmitted in the proper format and/or the imposition of sanctions.