Judge: Stephen I. Goorvitch, Case: 23STCV09018, Date: 2023-10-26 Tentative Ruling

Case Number: 23STCV09018    Hearing Date: October 26, 2023    Dept: 39

Leia Brim v. Delrick McElwee

Case No. 23STCV09018

Order to Show Cause re: Sanctions

Motion to Compel

Order Striking Jury Demand

            The Court posts this order on October 23, 2023, in advance of the hearing on October 26, 2023, at 8:30 a.m.  The Court provides notice: Any party who does not appear at the hearing, either remotely or in-person, shall waive the right to be heard and shall submit to this tentative order or any amendment of this tentative order.  The Court authorizes remote appearances.  Any party who wishes to appear remotely but is experiencing difficulty may contact the Court’s clerk, Roberto Mendoza, at (213) 633-0159. 

Plaintiff Leia Brim (“Plaintiff”) filed this action against her former husband, Delrick McElwee (“Defendant”), asserting a cause of action for “intentional tort.”  Plaintiff alleges that Defendant “harassed” her and “made terrorists threats frightening and scaring [her], violating [her] civil rights, and causing [her] traumatic psychological harm, resulting in extreme mental and emotional distress to [her].”  The Court rules as follows on the pending matters:

            1.         Order to Show Cause re: Sanctions – Plaintiff did not appear at the case management conference, and the Court issued an Order to Show Cause why sanctions in the amount of $500 or less should not be imposed.  (See Court’s Minute Order, dated August 23, 2023.)  In response, Plaintiff states that she had car trouble and could not appear at the hearing, and she did not call the Court’s clerk because her cell phone had insufficient power.  Good cause having been shown, the Court discharges the Order to Show Cause.  The Court orders Plaintiff to contact the Court’s clerk and Defendant if she is unable to appear at a hearing.

            2.         Motion to Compel – Plaintiff seeks to compel responses to form interrogatories, set one, as well as monetary sanctions in the amount of $2,500.  Plaintiff did not file a proof of service.  Plaintiff’s motion includes a declaration stating: “I sent form interrogatories set-1 to defendant via U.S. mail on May 16, 2023.”  Parties may not serve pleadings themselves.  Rather, parties must serve pleadings by using a third-party who is over the age of 18 years old and is not a witness or otherwise involved in this case, e.g., the Sheriff’s Department, a registered process server, a family member or friend, etc.  Therefore, the motion is denied without prejudice to Plaintiff re-serving the discovery requests.

            3.         Striking the Jury Demand – Per Code of Civil Procedure section 631, a party must post jury fees or file a request for a waiver of jury fees before the case management conference.  Plaintiff failed to do so.  On August 23, 2023, the Court ordered: “Jury Fees shall be posted within ten (10) days or Plaintiff shall request a fee waiver within thirty (30) days or she shall waive the right to a jury trial.”  (See Court’s Minute Order, dated August 23, 2023.)  The Court’s clerk served this order upon Plaintiff that same date, and Plaintiff has neither posted jury fees nor sought a waiver of jury fees.  Therefore, the Court strikes Plaintiff’s demand for a jury trial and orders that this trial shall proceed as a bench trial.  This order is without prejudice to Plaintiff seeking relief from jury waiver by filing a noticed motion.

            4.         Notice – The Court’s clerk shall provide notice.