Judge Thomas Falls, Case 21PSCV00411 2022-12-28 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling.

Counsel may submit on the tentative rulings by calling the clerk in Dept. O at 909-802-1126 before 8:30 the morning of the hearing. Submission on the tentative does not bind the court to adopt the tentative ruling at the hearing should the opposing party appear and convince the court of further modification during oral argument.

The Tentative Ruling is not an invitation, nor an opportunity, to file any further documents relative to the hearing in question. No such filing will be considered by the Court in the absence of permission first obtained following ex-parte application therefore.

EZ CASH vs GEICO GENERAL INSURANCE, CO. A CALIFORNIA CORPORATION, et al (21PSCV00411)

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All four (4) discovery motions are MOOT. The court may impose monetary sanctions on Defense Counsel for bad faith litigation tactics, a matter which will be resolved at the conclusion of the hearing.

This is a collections case regarding one check. Plaintiff EZ alleges the following against Defendants GEICO GENERAL INSURANCE CO., A CALIFORNIA CORPORATION; AND COY WALLACE: Defendant Geico issued Defendant Wallace a check for property damage. Despite cashing the check at Plaintiff EZ Cash, Defendant Wallace asked Geico to reissue the $36,000 check, which then EZ Cash was unable to cash.

On April 15, 2022, Plaintiff filed a Proof of Service, after OSCs regarding the failure to file such proof of service.

On November 23, 2022, the court granted Plaintiff’s ex-parte to advance the discovery motion hearing dates.

To date, as of Sunday, December 26, 2022, at 12:15 PM, no Reply has been received (due 5 court days before a hearing).

Defendant argues that Plaintiff has not responded to any discovery. Plaintiff’s Opposition, however, provides a sound argument as to why it did not respond within 30 days of the discovery request: it never received the discovery.[1] Plaintiff only learned of the motions when Defendant Geico filed the motions. In fact, Plaintiff’s counsel immediately replied back: “This is quite a surprise. I don’t recall discovery ever being received. Of course, we will respond. Can you please resend?” (Opp. p. 2) (emphasis added). Thereafter, after said communication, Plaintiff provided responses on November 21, 2022.

Despite, all the motions being moot, the court finds it necessary to further discuss the situation.

First, though meet and confer efforts are not required for basic discovery motions, it is common practice to do so. To this point, this court rarely sees parties file basic discovery motions without meet and confer efforts. As such, Defendant Geico’s failure to reach out to inquire about the status of the responses or meet and confer in any way not only disturbs the parties’ relationship, but also affects the court’s already impacted schedule. Therefore, for future motions, the court will impose monetary sanctions on the moving party for any motions wherein adequate meet and confer efforts are not satisfied.

Second, as to the ex-parte application, Plaintiff’s Counsel informed Defense Counsel that he would be travelling out of country wherein they should schedule the ex parte when Plaintiff’s counsel is back. However, rather than keep good on the parties’ promise to have the ex parte application heard on December 15^th, Defendant Geico immediately moved for an earlier hearing. (Opp. p. 2.)[2] In response to this notice, Plaintiff’s Counsel commented that such conduct is not in accordance with the professional standards. The court agrees. Not only did Defense Counsel not abide by basic professional rules by its failure to communicate with Plaintiff’s Counsel, or, at the very least to remove the motions off calendar after receiving responses, but Defense Counsel reneged on a promise. This court does not take such conduct lightly.

All in all, the court agrees with Plaintiff that “this was a simple dispute that could have been resolved with just one communication.” (Opp. p. 3.)

Based on the foregoing, as Plaintiff has provided the responses, the motions are moot. In any event, considering the possible bad faith, the court is inclined to impose monetary sanctions on Defense Counsel W. Joseph Denapole.

[1] Defendant Geico also explains that the parties had no prior agreement to be served via e-mail; yet, the Proof of service attached to the motions indicates service via email.

[2] And upon seeing the ex-parte notice, and knowing Plaintiff’s Counsel cannot attend to it, Plaintiff’s counsel emailed the following to Defense Counsel: “This is disappointing and very much in bad faith. Despite my telling you that I am unavailable and your assurances that you can do ex parte after the 15th, you are now bringing ex parte for tomorrow. I am not available and I hope you inform the Court accordingly. Otherwise, we will have to inform the Court of the bad faith behavior. This is not in accordance with the professional standards.” (Opp. p. 3.)