Judge: Wesley L. Hsu, Case: 22PSCV01378, Date: 2023-05-09 Tentative Ruling

Case Number: 22PSCV01378    Hearing Date: May 9, 2023    Dept: L

1.         Defendants Rosa Ruelas and Guadalupe Mendoza-Ramirez’s Motion to Compel Responses to Form Interrogatories (Set One) is GRANTED. Plaintiff is to provide verified responses, without objections, to Ruelas’ and Mendoza-Ramirez’s Form Interrogatories, Set No. One, within 30 days from the date of the notice of ruling. Sanctions are awarded in the reduced amount of $360.00 and are payable within 30 days of the date of the notice of ruling.[1]

2.         Defendants Rosa Ruelas and Guadalupe Mendoza-Ramirez’s Motion to Compel Responses to Request for Production of Documents (Set One) is GRANTED. Plaintiff is to provide verified responses, without objections, to Ruelas’ and Mendoza-Ramirez’s Request for Production of Documents, Set No. One, within 30 days from the date of the notice of ruling. Sanctions are awarded in the reduced amount of $360.00 and are payable within 30 days of the date of the notice of ruling.

3.         Defendants Rosa Ruelas and Guadalupe Mendoza-Ramirez’ Demurrer to Complaint is SUSTAINED. The court will hear from Plaintiff as to whether leave to amend is requested, and as to which cause(s) of action, and will require an offer of proof if so.[2]

Background[3]  

Plaintiff Jose Mendoza (“Plaintiff”) alleges as follows: Plaintiff and Defendants Rosa Ruelas (“Rosa”) and Guadalupe Mendoza-Ramirez (“Guadalupe”) are siblings. Plaintiff lived at the unspecified “subject property” with their mother, Sofia Mendoza (“Sofia”) and late father, Ignacio Mendoza (“Ignacio”). Plaintiff was led to believe that, because of a letter written and signed by Sofia, Ignacio, Rosa, Guadalupe, and Plaintiff’s sister Gloria Mendoza (“Gloria”), he would be allowed to live in the house on the subject property for the rest of his life and that the subject property would not be sold during that time. On or about September 30, 2019, Rosa visited the subject property, took Sofia away from same and developed a plan to sell the subject property.

On October 20, 2022, Plaintiff filed a complaint, asserting causes of action against Rosa, Guadalupe and Does 1-10 for:

1.                  Intentional Infliction of Emotional Distress

2.                  Negligent Infliction of Emotional Distress

A Case Management Conference is set for May 9, 2023.

1.         Motion to Compel Re: Form Interrogatories[4]

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[5]

Rosa and Guadalupe move the court for an order compelling Plaintiff to serve responses, without objections, to their Form Interrogatories, Set No. One. Rosa and Guadalupe additionally seek sanctions against Plaintiff in the amount of $960.00.

On December 30, 2022, Rosa and Guadalupe served the subject discovery. (Vega Decl., ¶ 2, Exhs. 1 and 2.) Rosa and Guadalupe represent that no responses were received as of the motion filing date. (Notice, 2:5-6; Motion, 3:22-23).

The court notes that the instant motion was initially heard on March 27, 2023; the minute order from that date indicates that, while the court was initially inclined to adopt its tentative ruling on that date as its final order, the court ultimately continued the hearing to May 9, 2023 because the tentative ruling “was not communicated to Plaintiff in the Court’s oral recitation of its tentative ruling.”

The court further notes that on May 1, 2023, Plaintiff filed a “Supplemental Response to Form Interrogatories—General.” The court has generally perused same and determines that they are insufficient, in that (1) they are incorrectly labeled “supplemental responses,” (2) they include objections, which have been waived and that (3) they are not properly verified. (See Response to Nos. 1.1, 2.3, 2.4, 2.6. 2.7.)

The motion is granted. Plaintiff is to provide verified responses, without objections, to Ruelas’ and Mendoza-Ramirez’s Form Interrogatories, Set No. One, within 30 days from the date of the notice of ruling.

Sanctions

Rosa and Guadalupe seek sanctions against Plaintiff in the amount of $960.00 [calculated as follows: 3 hours preparing motion at $300.00/hour, plus 1 hour preparing reply, plus $60.00 filing fee (Note: This equals $1,260.00)].

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 $360.00 (i.e., 1 hour at $300.00/hour, plus $60.00 filing fee). Sanctions 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 demand for inspection, copying, testing, or

sampling is directed fails to serve a timely response to it, . . . [t]he party making the demand may

move for an order compelling response to the demand.” (Code Civ. Proc., § 2031.300, subd. (b).)

“[T]he court shall impose a monetary sanction . . . against any party, person, or attorney who

unsuccessfully makes or opposes a motion to compel a response to a demand for inspection,

copying, testing, or sampling, 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

Rosa and Guadalupe move the court for an order compelling Plaintiff to serve responses, without objections, to their Request for Production of Documents, Set No. One. Rosa and Guadalupe additionally seek sanctions against Plaintiff in the amount of $960.00.

The court notes that the instant motion was initially heard on March 27, 2023; at that time, the court continued the hearing to May 9, 2023 on the basis that “[a] review of the motion reflects that an incomplete copy has been filed; notably, at least pages 3 and 5 are missing, as is Vega’s declaration.” The court also “instruct[ed] Vega to re-file and serve a full and complete copy of the motion and supporting declaration within 5 calendar days from the date of the instant hearing.”

On April 5, 2023, Defendants filed (and served via mail and email) a “Notice of Ruling Re: 1) Motion to Compel Responses to Form Interrogatories; 2) Motion to Compel Responses to Request for Production of Document; 3) Case Management Conference;” attached to said notice was a full and complete copy of the instant motion (i.e., including pages 3 and 5 and Vega’s declaration).

On December 30, 2022, Rosa and Guadalupe served the subject discovery. (Vega Decl., ¶ 2, Exh. 1.) Rosa and Guadalupe represent that no responses were received as of the motion filing date. (Notice, 2:5-6; Motion, 4:6 and 4:18-21).

The motion is granted. Plaintiff is to provide verified responses, without objections, to Ruelas’ and Mendoza-Ramirez’s Request for Production of Documents, Set No. One, within 30 days from the date of the notice of ruling.

Sanctions

Rosa and Guadalupe seek sanctions against Plaintiff in the amount of $960.00 [calculated as follows: 3 hours preparing motion at $300.00/hour, plus 1 hour preparing reply, plus $60.00 filing fee (Note: This equals $1,260.00)].

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 $360.00 (i.e., 1 hour at $300.00/hour, plus $60.00 filing fee). Sanctions are payable within 30 days from the date of the notice of ruling.

3.         Demurrer

Legal Standard

A demurrer may be made on the grounds that the pleading, inter alia, does not state facts sufficient to constitute a cause of action and/or is uncertain. (Code Civ. Proc., § 430.10, subds. (e)&(f).)

When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [citations omitted].) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) “[A] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)

Discussion

Rosa and Guadalupe demur, pursuant to Code of Civil Procedure § 430.10, subdivisions (e) and (f), to the first and second causes of action in Jose’s complaint, on the basis that they both fail to state facts sufficient to constitute a cause of action and are uncertain.

First Cause of Action (i.e., Intentional Infliction of Emotional Distress)

“A cause of action for intentional infliction of emotional distress exists when there is (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050 [internal quotations and citation omitted].)

“It is settled . . . that the intentional infliction of severe mental or emotional distress or disturbance caused by willful and outrageous conduct, in the absence of privilege, constitutes an actionable tort for which the victim may recover damages. [U]nder California law ... [where] the victim has suffered no physical harm but only mental distress, the defendant is liable only when his conduct is outrageous or has gone beyond all reasonable bounds of decency.” (Fuentes v. Perez (1977) 66 Cal.App.3d 163, 170 [quotations and citation omitted].)

Rosa and Guadalupe argue that Plaintiff has not alleged outrageous conduct. The court agrees. Plaintiff has alleged that Rosa and Guadalupe “intentionally caused Plaintiff emotional distress by . . . breaking their promise to allow Plaintiff to reside in the house on the subject property for as long as he was alive and that the property would not be sold at any time during his lifetime” and that “[a]s a result of Defendants. . . conduct, Plaintiff. . . suffered legally compensable emotional distress damages.” (Complaint, ¶¶ 12 and 16.) This is insufficient.

Rosa and Guadalupe’s demurrer to the first cause of action is sustained.

Second Cause of Action (i.e., Negligent Infliction of Emotional Distress)

“The negligent causing of emotional distress is not an independent tort but the tort of negligence. The traditional elements of duty, breach of duty, causation, and damages apply.” (McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1509 [quotations and citation omitted].) The “Directions for Use” accompanying CACI 1620 states that “[t]he California Supreme Court has allowed plaintiffs to recover damages as ‘direct victims’ in only three types of factual situations: (1) the negligent mishandling of corpses (Christensen v. Superior Court (1991) 54 Cal.3d 868, 879); (2) the negligent misdiagnosis of a disease that could potentially harm another (Molien [v. Kaiser Foundation Hospitals (1980)] 27 Cal. 3d [916]); and (3) the negligent breach of a duty arising out of a preexisting relationship (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1076.)” Plaintiff has failed to sufficiently set forth a duty in Paragraph 18.

Rosa and Guadalupe’s demurrer to the second cause of action is sustained.