Judge: Wesley L. Hsu, Case: 22PSCV00853, Date: 2023-04-12 Tentative Ruling
Case Number: 22PSCV00853 Hearing Date: April 12, 2023 Dept: L
1.
Defendant Darla Marquis, individually and as Trustee for the Darla J. Marquis
Trust
Dated
August 5, 2015’s Motion to Compel Plaintiff Ross Kennedy to Respond to Form
Interrogatories is GRANTED. Plaintiff is to provide verified responses, without objections, to Marquis’
Form Interrogatories, Set No. One, within 30 days from the date of the notice
of ruling. Sanctions are awarded against counsel Jason J. Allison in the
reduced amount of $361.65 and are payable within 30 days of the date of the
notice of ruling.
2.
Defendant Darla Marquis, individually and as Trustee for the Darla J. Marquis
Trust
Dated
August 5, 2015’s Motion to Compel Plaintiff Ross Kennedy to Respond to Request
for Identification and
Production of Documents and Produce Documents is GRANTED. Plaintiff is
to provide verified responses, without objections, to Marquis’ Request for
Identification and Production of Documents, Set No. One, within 30 days from
the date of the notice of ruling. Sanctions are awarded against counsel Jason
J. Allison in the reduced amount of $361.65 and are payable within 30 days of
the date of the notice of ruling.
Background
Plaintiff Ross Kennedy (“Plaintiff”) alleges as follows: Plaintiff
and Darla Marquis (“Marquis”) were involved in a romantic relationship until
about December 2019. Marquis proposed that they enter into a joint venture
contract because she needed help paying the mortgage and maintaining the
property located at 217 College Way in Covina (“subject property”). On or about
August 26, 2015, Plaintiff and Marquis entered into a joint venture contract
regarding the subject property, wherein they would hold equal legal title as
joint tenants and Plaintiff would pay Marquis $850.00/month and help with
maintenance and improvements. Plaintiff and Marquis agreed that, once Marquis became
financially stable, she would refinance the subject property in her own name
and Plaintiff would quitclaim his interest to Marquis, at which time Plaintiff
would be distributed his share of the joint venture, which would be
reimbursement of his capital contributions plus 50% of the increased value of
the subject property. On or about November 9, 2017, Marquis presented Plaintiff
with a quitclaim deed to have Plaintiff transfer title to the subject property
to Marquis. Marquis explained that her mother had inherited a significant sum
of money and was going to pay off the mortgage as a gift to Marquis and that,
in order to do so, she needed to have sole title which would then be
transferred into a trust. Marquis told Plaintiff that she and Plaintiff would
both be beneficiaries to the trust, that Plaintiff would no longer need to make
any payments on the subject property and that, when Plaintiff moved in (after
he retired), they would equally share in the expenses, upkeep and maintenance
of the subject property. Plaintiff quitclaimed the subject property to Marquis and
Marquis transferred title to the trust and paid off the mortgage.
On August 19, 2022, Plaintiff filed a First Amended
Complaint, asserting causes of action against Marquis, individually and as
Trustee of the Darla J. Marquis Trust, All Persons Unknown, Claiming Any Legal
or Equitable Right, Title, Estate, Lien, or Interest in the Property Described
in the Complaint Adverse to Plaintiff’s Title or Any Cloud on Plaintiff’s Title
Thereto and Does 1-10 for:
1.
Breach of Joint Venture Contract Based on Writing
2.
Deceit
3.
Breach of Fiduciary Duty
4.
Quiet Title
5.
Accounting
On October 7, 2022, Plaintiff dismissed his fourth cause of
action, with prejudice.
On April 6, 2023, Plaintiff’s counsel, Jason J. Allison,
filed an untimely, omnibus “opposition” to the motions to compel in which
counsel took sole responsibility for the failure to respond to the discovery.
A Case Management Conference and an Order to Show Cause Re:
Why the Matter Should Not Be Dismissed for Failure to Prosecute are set for
April 12, 2023.
1. Motion to Compel Re: Form Interrogatories
Legal Standard
A response to interrogatories is due
30 days after service. (Code Civ. Proc., § 2030.260, subd.
(a).) “If a party to whom
interrogatories are directed fails to serve a timely response, . . . [t]he
party propounding the interrogatories
may move for an order compelling response to the
interrogatories.” (Code Civ. Proc., §
2030.290, subd. (b).)
The court
shall impose a monetary sanction . . . against any party, person, or attorney
who unsuccessfully makes or opposes a motion to compel a response to
interrogatories, unless it finds that the one subject to the sanction acted
with substantial justification or that other circumstances make the imposition
of the sanction unjust . . .” (Code Civ. Proc., § 2030.290, subd. (c).)
Discussion
Sanctions
Marquis seeks sanctions against
Plaintiff and his attorneys in the amount of $961.65 [calculated as follows: 2
hours preparing motion at $450.00/hour, plus $61.65 filing fee].
The court truly appreciates counsel
Allison’s declaration accepting responsibility for the failure to respond to
discovery in this matter. The court wishes that all counsel were as candid and
forthright. Nevertheless, as counsel’s declaration correctly recognizes, this does
not excuse the failure to respond nor obviate the mandatory imposition of
sanctions.
Utilizing a Lodestar approach, and
in view of the totality of the circumstances, the court finds that the total
and reasonable amount of attorney’s fees and costs incurred for the work
performed in connection with the pending motion is $361.65 (i.e., 1 hour at
$300.00/hour, plus $61.65 filing fee). Sanctions against counsel Jason J.
Allison only are payable within 30 days from the date of the
notice of ruling.
2. Motion to Compel
Re: Document Production
Legal Standard
A response to a request for production
of documents is due 30 days after service. (Code Civ.
Proc., § 2031.260, subd. (a).) If a
party to whom a request for production of documents is
directed fails to serve a timely
response to it, the party making the demand may move for an
order compelling response to the
demand. (Code Civ. Proc., § 2031.300, subd. (b).)
The court
shall impose a monetary sanction against any party, person, or attorney who
unsuccessfully makes or opposes such a
motion to compel, unless it finds that the one subject to
the sanction acted with substantial
justification or that other circumstances make the imposition
of the sanction unjust.” (Code Civ.
Proc., § 2031.300, subd. (c).)
Discussion
See synopsis of Motion
#1.
Sanctions
Marquis seeks sanctions against
Plaintiff and his attorneys in the amount of $961.65 [calculated as follows: 2
hours preparing motion at $450.00/hour, plus $61.65 filing fee].
Utilizing a Lodestar approach, and
in view of the totality of the circumstances, the court finds that the total
and reasonable amount of attorney’s fees and costs incurred for the work
performed in connection with the pending motion is $361.65 (i.e., 1 hour at
$300.00/hour, plus $61.65 filing fee). Sanctions against counsel Jason J.
Allison only are payable within 30 days from the date of the notice of
ruling.