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Donahue vs. MBK Senior Living, LLC, et al.
Aug 14, 2024 |SCV-268130
SCV-268130, Donahue v. MBK Senior Living, LLC I. IntroductionThis matter comes before the Court as Plaintiffs Kellie Tennier and Raymond Donahue,individually and as successors in interest to the estate of Teresa Donahue (“Decedent”),collectively referred to as “Plaintiffs”, Motion for Attorney’s Fee and Costs made pursuant toWelfare & Institutions Code (“W&I”) §15657 against Defendants MBK Senior Living, LLC;MSL Community Management, LLC; and Muirwoods MSL, LLC (“Facility”), collectivelyreferred to as “Defendants”.Plaintiffs’ motion seeks to recover $3,381,775.00 in attorney’s fees and $256,000.00 in costsfollowing a successful jury verdict rendered after a month-long trial.After careful consideration of the motion, opposition, and all supporting declarations andevidence, the Court GRANTS Plaintiffs’ motion. However, the base amount is reduced from$1,690,887.50 to $1,439,995, to conform with the fair market value of legal services within thelocal community. The Court also affirms Plaintiff’s request for a 2.0 Lodestar multiplier whichprovides a total attorney’s fees award of $2,879,990 and a total cost award of $256,000. II. Procedural HistoryDecedent, by and through her attorney-in-fact, Raymond Donahue, initially filed a complaintagainst Defendants and others on April 2, 2021, asserting claims for (1) Elder Neglect (2)Negligence. On June 23, 2022, Plaintiffs then filed a first amended complaint (“FAC”) againstDefendants and others now asserting claims for (1) Elder Neglect, (2) Negligence, (3) WrongfulDeath, and (4) Survivorship. The gravamen of the FAC involved allegations of negligence and/orneglectful care which Defendants provided to Decedent during her residency at the Facility.The matter proceeded to a jury trial from August 11, 2023, through September 20, 2023. On thatlast day, the Court convened the jury which informed of a deadlock. A mistrial was eventuallydeclared.The matter was reset for a jury trial which now commenced on March 1, 2024, and concluded onApril 5, 2024. The trial proceeded in two phases: the first phase involved jury determination onliability while the second phase involved punitive damages. At the conclusion of deliberations,the jury rendered a verdict in favor of Plaintiffs. As to damages, the jury awarded Decedent$3,280,136.31 on the negligence claim and Plaintiffs Kellie Tennier and Raymond Donahue$300,000 collectively on the survivorship action. The jury also apportioned fault to 33.3% as toeach of the three Defendants. The jury also found for Plaintiffs on the Elder Neglect claim and inthe second phase awarded a total of $17,000,000 in punitive damages1. This judgement wasentered on April 30, 2024. A Notice of Entry of Judgement was processed by the Court andserved by Plaintiffs on May 15, 2025. III. Factual Chronology A. Case FactsDecedent Teresa Donahue resided at the Facility, a residential Care facility for the elderly(RCFE”), from July 1, 2020, to March 20, 2021. At the time of her admission to MuirWoods inJuly 2020, she was 85 years old and already had “severe dementia”—which is one stage before“end-stage” or “terminal dementia.” (Reporter’s Transcript (“RT”) 3/20/24 at 68:16-23).Decedent’s stay at the Facility occurred during the COVID-19 pandemic. From January 2021 toMarch 2021, Ms. Donahue also developed COVID and a small bowel obstruction, and she wasusing a walker rather than walking independently. (RT 3/20/24 at 106:21-24.) During that time,she experienced four falls at MuirWoods. When Ms. Donahue fell for the final time on March20, 2021, she fractured her hip and was transferred to another facility.Ms. Donahue passed away at Carriage House Board-and-Care on April 15, 2022. Her deathcertificate listed her immediate cause of death as “acute cardiopulmonary arrest,” and theconditions that led to the cause of death as “acute myocardial infarction” and “atheroscleroticvascular disease.” (Trial Ex. 240). The death certificate also mentions “hypertension” and“dementia” as “other significant conditions contributing to death.” (Ibid.) Her death certificatedoes not mention the falls, a hip fracture, or anything else that occurred while she was atMuirWoods more than a year earlier. (See ibid.).1 The jury apportioned $15,000,000 to Defendant MBK Senior Living, LLC; $1,250,000 to Defendant MSLCommunity Management, LLC; and $750,000 to Defendant Muirwoods MSL, LLC, dba, Muirwoods Memory Care. B. Plaintiffs’ MotionPlaintiffs’ motion was filed on May 24, 2024, and seeks recovery of attorney’s fees and costspursuant to W&I §15657. Plaintiffs contend that their counsel dedicated 2,999.95 hours ofcounsel and legal staff time which generated $1,690,887.50 in fees. (MTN, Guadagni Decl. at¶26). Plaintiffs also seek to recover $256,000 in costs. (MTN, Guadagni Decl. at ¶21). Finally,Plaintiffs also request that the Court apply a 2.0 Lodestar multiplier which would result in adoubling of the attorney’s fees to $3,381.775. For this last proposition Plaintiffs presentargument and supporting evidence to establish the following factors: (1) risks presented by acontingent fee recovery, (2) difficulty of the question involved and skilled required, (3) vigorousdefense by Defendants, (4) preclusion of other employment, (5) results obtain and importance oflawsuit to the public, (6) additional time and labor required, and (7) a comparison between thefees requested and benefits to Plaintiffs. Plaintiffs also present a summary log of all tasks andactivities (again in single space format, which the Court finds unacceptable) which outlines tasksperformed throughout this litigation. (MTN at pg. 8; Guadagni Decl. at ¶24).First, Plaintiffs contends that the development of facts as to all claims is so intertwined that it isimpracticable, if not impossible, to separate the work performed. (MTN at 9:8-20). At trial, thejury found in favor on Plaintiffs on their elder abuse, negligence, and wrongful death claims. As tthe former, the jury also made a finding, by clear and convincing evidence, that Defendants hadengaged in conduct constituting recklessness and oppression. However, the jury was not asked toseparate which facts and/or conduct it found supporting each the findings on each claim.In requesting a Lodestar multiplier, Plaintiffs through declaration of counsel, present evidence tosupport a slightly different total (2,955.95, 40 hours less for reasonable time spent. Plaintiffs alsothe following table to account for the hourly rate charged by each timekeeper.Name Bar Admit Position Rate Hours Fees (prior to Date multiplier)Kathryn A. 1985 SGGK Principal Partner $975 242.5 $ 236,437.5StebnerKarman 2009 SGGK Managing Partner $700 1240 $868,000.00GuadagniDeena 1989 SGGK Senior Assoc. $550 177 $ 97,350.00ZacharinKelsey 2021 SGGK Associate $400 641.65 $256,660.00Craven (5/20/23-present) $250 204.7 $ 51,175.00 SGGK Jr. Associate $150 16.8 $ 2,520.00 (5/5/21-5/19/23) Law Clerk (2016-5/4/21)Scott n/a SGGK Paralegal $200 169 $ 33,800.00PattersonLeslie n/a SGGK Law Clerk $150 88.8 $ 13,320.00Estrada-FlynnKirsten Fish 2001 NKF Partner $750 175.50 $131,625.00Totals 2955.95 $1,690,887.50However, what Plaintiffs’ motion fails to establish is whether these figures are the reasonablehourly rate in the relevant community and whether Plaintiffs made a prior effort to engage localcounsel (Sonoma County) as oppose to Northern California, which for Plaintiffs also include SanFrancisco County. (MTN 15:1-8). Plaintiffs argue their counsel’s skill and experience, thecontingency nature of their legal relationship and the risks presented (this matter was triedtwice), and the difficulty of the questions presented which included facts to support findings ofliability by two different evidentiary standards, the necessity to develop facts which requiredextensive discovery, including but not limited to: review of voluminous medical records;depositions; and medical experts in fields of residential care facilities for the elderly (“RCFE”),medical causation, and dementia care, adequately support the requested 2.0 Lodestar multiplier.(MTN 17:8-28). Plaintiffs’ motion concludes by summarizing the vigorous defense of the claimsby Defendants, Plaintiffs’ counsel preclusion of taking on other matters when they accepted thepresent on, and other policy considerations warranted the requested increases. C. Defendants OppositionDefendants oppose the motion claiming that Plaintiffs are only entitled to recover attorney’s feesand costs expended solely in litigating the elder abuse claim. (Opp. at 7:4-8). More specifically,Defendants contend that Plaintiffs failed to allocate fees amongst the various causes of actionasserted in the FAC. (Opp. at 8:5-8; Akins v. Enterprise Rent-A-Car of San Francisco (2000) 79Cal.App.4th 1127, 1133-1134). Defendants argue Plaintiffs’ negligence-based claims are notintertwined with the elder abuse claim as different elements of proof and evidentiary standardsare required for each. (Opp. at 8:13-16; 8:23-28). However, they do concede that all of Plaintiffsclaims generally involve the same set of relevant facts. (Opp. at 8:18-19). Therefore, Defendantsrequest that this Court apportion fees so that it isolates the elder abuse claim. (Opp. at 8:7-8; Bellv. Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 687).Defendants also argue that Plaintiffs counsel’s hourly rate is excessive “given the relativelysimple nature of the elder neglect claim at issue, which involves a fall at a resident care facility.”(Opp. at 7:6-7). In making the challenge, Defendants argue that Plaintiffs have failed to establishthat the hourly rates (outlined above) are identical and thereby reasonable within the communityin which this matter was litigated. (Opp. at 7:22-28). Defendants also take issue with Plaintiff’sassertion that the amount of time expended on this matter was reasonable and necessary due toan apparent failure of providing billing records. (Opp. At 10:8-10; 10: 25-28). Finally,Defendants argue that the 2.0 Lodestar multiplier is inappropriate as the workup which Plaintiff’scounsel performed on this matter is expected in litigating any civil matter. (Opp. at 13:1-6). IV. Applicable LawWhen authorized by contract, statute, or law, reasonable attorneys are “allowable costs.” (CCP§1033.5(a)(10(A)-(C)). In actions under the Elder Abuse and Dependent Adult Civil ProtectionAct (W&I §15600 et. seq.) The court shall award plaintiff reasonable attorney fees and costswhen it is proven by clear and convincing evidence that defendant is liable for among variousconduct, neglect (W&I §15610.57). Defendant’s conduct must be shown to rise of the level offraud, malice, oppression, or recklessness in committing the abuse. (W&I §15657(a)).When defendants conduct is proven by clear and convincing evidence, then under W & I§15657(a), the Court must “award to the plaintiff reasonable attorney’s fees and costs . . .devoted to the litigation of a claim brought under this article.”Statutory attorney’s fees are ordinarily determined by the court pursuant to the “Lodestar” or“Touchstone” method. Under this approach, a base amount is calculated from a compilation oftime reasonably spent and reasonable compensation for each attorney. The base amount is thenadjusted considering various factors. (Serrano v. Priest (1977) 20 C3d. 25, 48; Serrano v. Unruh(1982) 32 C3d 621, 639; Graham v. DaimlerChrysler Corp. (2004) 34 C4th. I 53, 579 – 580).The Lodestar factors include (1) the novelty and difficulty of the questions involved, (2) theskills displayed in presenting them, (3) the extent to which the nature of the litigation precludedother employment by the attorneys, (4) the contingent nature of the fee award, and (5) thesuccess achieved. (supra, Serrano v. Priest (1977) 20 C3d. at 49). The purpose of any theenhancement is to primarily compensate the attorney for the prevailing party at a rate reflectingthe risk of nonpayment and contingency cases as a class. (Ketchum v. Moses (2001) 24 C4th1122, 1138).The aim is also to compensate attorneys for their services at fair market value as an inducementto accept such matters (Fair market value) typically include the premium for the risk ofnonpayment or delay in payment of an attorney’s fees. (Id. at 1138). The party seeking the feeenhancement bears the burden of proof. (Id.) A plaintiff must make a good faith showing that itattempted but unsuccessful retaining local counsel. Under such circ*mstances, a plaintiff mayretain an attorney from another area having higher billable rates and will not be limited to feesdetermined at local hourly rates. (Horsford v. Board of Trustees of Calif. State Univ. (2005) 132Cal. App. 4th 59, 398, 399). Lodestar fee enhancement may not be imposed merely for thepurpose of punishing the losing party. (supra, Ketchum v. Moses (2001) 24 C4th. at 1139).Where appropriate, the court has discretion to adjust the lodestar downward. (Id.). V. AnalysisAs a perfunctory matter, the Court has determined that Plaintiffs are the ‘prevailing parties” andare entitled to recovery of reasonable attorney’s fees and costs pursuant to W&I §15657.Statutory provisions authorizing attorney’s fees to the “prevailing party” are not subject to thedefinition of “prevailing party” found in the general cost statute, CCP §1032. Normally, theprevailing party is the one whose favor a net judgment has been entered. (Smith v. Rae-VenterLaw Group (2002) 29 Cal. 4th 345, 365). Defendants do not contest this issue and by virtue of thejury verdict in favor of Plaintiffs, this issue is fully established.Defendants challenge is generally focused on the unreasonable time Plaintiffs counsel’s spent onthis matter and (2) and also contend the charges are unreasonable and/or unnecessary. As toDefendants claim regarding Plaintiffs counsels’ time, they assert that the legal claims arestraightforward and factually predicated on a singular event, Decedent’s fall at the Facility. TheCourt finds this argument unpersuasive. Plaintiffs have provided a summary log of all tasksgenerally performed on this matter prior to trial. Although the Court takes issue with how thesefacts were presented in the motion (i.e. improper format), it is aware of the factual and legalcomplexities which arose during the discovery phase and over two month-long trials. The Courtwill not recite the legal and factual chronology established in this matter as a detailed accountingwas provided in the Court’s prior rulings on Defendants’ post-trial motions. Had these issuesbeen so straightforward as claimed, the Court would have at minimum expected a shorter versionof the second trial. This was not the case. Moreover, Defendants argument that Plaintiffs’negligence-based claims are not intertwined with the elder abuse claim is also without merit. Theelder abuse and negligence claims relied on a virtually identical set of facts. It is the Court’simpression that the jury merely selected certain facts to make an additional evidentiary finding(clear and convincing) on the former claim to support a subsequent finding of punitive damages.The jury was not tasked to specify which set of facts it relied on the elder abuse claim and forthat reason the Court is not in a position to ‘untangle’ the jury’s determinations as Defendantsrequest.The Court does find some merit in Defendants’ second point, that the market rate used toestablish eventual attorney’s fees is factually deficient. On this issue, Plaintiffs have the burdenof proof. (supra, Ketchum v. Moses (2001) 24 C4th 1122, 1138). The aim is to compensateattorneys for their services at fair market value as an inducement to accept such matters (Fairmarket value). (Id). However, Plaintiffs’ counsel did not sufficiently show that their SanFrancisco hourly rates are reasonable within the local community of Sonoma County. Plaintiffsalso did not show that they attempted to find local counsel but were unsuccessful. To simplystate that the proffered hourly rates are representative of Northern California, lacks factualsupport. Typically, hourly rates for experienced senior counsel in Sonoma County falls withinthe $500-$700 range, senior associate level counsel’s range falls within $350-$500, and the payscale descends consistent from that level to paralegals and law clerks. Plaintiffs presented noevidence establishing their rates were not subject to deduction to comply with the localcommunity. As such, consideration of this Court’s variance with their market value rates werelegal counsel within the local community, the Court will reduce the hourly rates but maintain themultiplier requested as follows: Name Bar Date Position & Hourly Hours Fees Experience Rate Kathryn A. 1985 SGGK Principal $700 242.5 $169,750 Stebner Partner Karman 2009 SGGK Managing $600 1240 $744,000 Guadagni Partner Deena 1989 SGGK Senior $450 177 $79,650 Zacharin Assoc. Kelsey 2021 SGGK Associate $400 641.65 $256,660 Craven (5/20/23-present) $250 204.7 $51,175 SGGK Jr. $100 16.8 $1,680 Associate (5/5/21-5/19/23) Law Clerk (2016- 5/4/21) Scott n/a SGGK Paralegal $150 169 $5350 Patterson Leslie n/a SGGK Law Clerk $100 88.8 $8880 Estrada- Flynn Kirsten 2001 NKF Partner $700 175.50 $122,850 Fish Total 2955.45 $1,439,995 Multiplier 2.0 $2,879,990Finally, the Court is also convinced that the 2.0 multiplier requested by Plaintiffs is appropriate.The Lodestar factors include (1) the novelty and difficulty of the questions involved, (2) theskills displayed in presenting them, (3) the extent to which the nature of the litigation precludedother employment by the attorneys, (4) the contingent nature of the fee award, and (5) thesuccess achieved. (supra, Serrano v. Priest (1977) 20 C3d. at 49). The purpose of any theenhancement is to primarily compensate the attorney for the prevailing party at a rate reflectingthe risk of nonpayment on contingency cases. In this instance the Court finds that the claimswere not simplistic in nature but rather a complex action where plaintiff’s alleged defendantsacted recklessly and ratified wrongful conduct. Plaintiffs were required gather facts and presentsadmissible evidence to satisfy two different evidentiary standards (“preponderance of theevidence” and “clear and convincing”). Although Defendants argue that Plaintiffs are onlyentitled to recover attorney’s fees and costs earmarked for the elder abuse claim, as outlinedabove, it is virtually impossible to untangle the set of facts which the jury relied on to establisheither of these claims. Moreover, it is the Court’s experience in a complaint alleging elder abuseand negligence, especially in the context of long-term care as is here, the same set of facts maysatisfy the varying evidentiary standards. It is simply a matter of degree, the weight which thejury allocates to the evidence, which is the determinant factor. The complexity of this casewarrants requested multiplier in this instance. VI. ConclusionBased on the foregoing, Plaintiffs motion for attorney’s fees and costs is GRANTED. However,the base amount is reduced from $1,690,887.50 to $$1,439,995, to conform with the fair marketvalue of legal services within the local community. The Court also affirms Plaintiff’s request fora 2.0 Lodestar multiplier which provides a total attorney’s fees award of $2,879,990 and a totalcost award of $256,000. Plaintiffs shall submit a written order to the Court consistent with thistentative ruling and in compliance with Rule of Court 3.1312(a) and (b).
Ruling
Transport Funding, LLC, a limited liability company vs. Premier Truck and Trailer Repair INC., a California corporation
Aug 13, 2024 |24CECG02001
Re: Transport Funding, LLC v. Premier Truck and Trailer Repair, Inc. Superior Court Case No. 24CECG02001Hearing Date: August 13, 2024 (Dept. 503)Motion: Plaintiff’s Application for a Writ of Possession against Defendant Premier Truck and Trailer Repair, Inc.Tentative Ruling: To deny in light of the entry of default against defendant Premier Truck and TrailerRepair on July 10, 2024.Explanation: This motion requests a prejudgment writ of possession against defendant, which isproper to request before final adjudication of the claims sued upon. (Kemp Bros. Const.,Inc. v. Titan Elec. Corp. (2007) 146 Cal.App.4th 1474, 1476.) However, after serving themoving papers on defendant (served along with the summons and complaint), plaintiffrequested entry of defendant’s default and the clerk entered their defaults on July 10,2024. The entry of default instantly cuts off a defendant’s right to appear in the actionor participate in the proceedings unless the default is set aside or judgment is entered(i.e., the latter giving the defendant the right to appeal). (Devlin v. Kearny MesaAMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385.) Due process would not beserved by allowing a plaintiff to give a defendant notice of a motion, but then cut off itsright to defend itself regarding that motion. Plaintiff has lodged the papers necessary toobtain a default judgment against defendant, which will be processed in due course.After judgment has been obtained, plaintiff may proceed with all post-judgmentenforcement procedures which are available. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Proceduresection 1019.5, subdivision (a), no further written order is necessary. The minute orderadopting this tentative ruling will serve as the order of the court and service by the clerkwill constitute notice of the order.Tentative RulingIssued By: jyh on 8/12/24 . (Judge’s initials) (Date)
Ruling
IZABELLA PAPAGELIS VS MARTHA HERNANDEZ
Aug 13, 2024 |24AHCV00019
Case Number: 24AHCV00019 Hearing Date: August 13, 2024 Dept: X Tentative Ruling [The court notes that at the time of this posting the Plaintiff has filed an ex parte that may affect this tentative] Judge Joel L. Lofton, Department X HEARING DATE: August 13, 2024 TRIAL DATE: No date set. CASE: Izabella Papagelis v. Martha Hernandez CASE NO.: 24AHCV00019 (1) Hearing on Motion to Compel Discovery FORM INTERROGATORIES, SET ONE (2) Hearing on Motion to Compel Discovery SPECIAL INTERROGATORIES, SET ONE (3) Hearing on Motion to Compel Discovery PRODUCTION OF DOCUMENTS, SET ONE (4) Hearing on Motion for Order Deeming RFA, Set One, as Admitted MOVING PARTY: Defendant Martha Hernandez RESPONDING PARTY: Plaintiff Izabella Papagelis SERVICE: Filed May 30, 2024 (1-3) Filed July 10, 2024 (4) OPPOSITION: None filed. REPLY: N/A RELIEF REQUESTED On May 30, 2024, Defendant Martha Hernandez moved for three orders to compel the response of Plaintiff Izabella Papagelis to (1) Form InterrogatoriesSet One (and $585 in sanctions), (2) Special InterrogatoriesSet One (and $322.50 in sanctions), and (3) Production of DocumentsSet One (and $322.50 in sanctions). On July 10, 2024, Defendant moved for an order deeming admitted the truth of facts in Requests for AdmissionSet One (and $497.50 in sanctions). BACKGROUND On January 3, 2024, Plaintiff filed a motor vehicle and negligence complaint alleging personal injury and property damage, arising out of an October 28, 2022 car accident allegedly caused by Defendant. Defendant asserts the facts of loss have not been established yet and liability is in dispute. Discovery was propounded on Plaintiff, but Plaintiff failed to respond at all. Defendant has no other means of obtaining the information and documents relevant to Plaintiffs claims, so Defendant has made the subject motions for court orders. TENTATIVE RULING Defendants motions to compel responses to Special InterrogatoriesSet, Form InterrogatoriesSet One, Requests for Production of DocumentsSet One are GRANTED. Defendants request to deem the truths as admitted for the Requests for AdmissionSet One is GRANTED. Defendants request for sanctions is GRANTED in the amount of $1,727.50. LEGAL STANDARD If a responding party fails to serve timely responses to interrogatories, the responding party waives all objections, including those based on privilege and work product protection, and the propounding party may move for an order compelling responses. (C.C.P. §§ 2030.290(a)-(b); Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 404.) If a party fails to serve timely responses to requests for production of documents, the responding party waives all objections, including those based on privilege and work product and [t]he party making the demand may move for an order compelling [a] response to the demand. (C.C.P. § 2031.300(a)-(b).) Additionally, the Court shall award sanctions for failure to respond. (C.C.P. § 708.020.) If a party to whom requests for admission are directed fails to serve a timely response, the party to whom the requests are directed waives any objection. (C.C.P. § 2033.280(a).) This section provides that [t]he requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted. (C.C.P. § 2033.280(b).) Additionally, it provides that the court shall make this order unless it finds that the party to whom the requests have been directed has served a proposed response in substantial compliance with section 2033.220 before the hearing on the motion. (C.C.P. § 2033.280(c).) DISCUSSION On March 26, 2024, Defendant served Special InterrogatoriesSet One, Form InterrogatoriesSet One, and Requests for Production of DocumentsSet One on Plaintiff. Verified responses were due April 29, 2024 for these three requests. On May 22, 2024, Defendant served its first set of Requests for Admission on Plaintiff. A verified response was due June 26, 2024 to this request. Plaintiff has not responded to the subject discovery requests, or any discovery in the action. Her attorneys have no provided reasonable justification. On May 30, 2024, Defendant filed the current motions to compel responses to (1) Form InterrogatoriesSet One (and $585 in sanctions), (2) Special InterrogatoriesSet One (and $322.50 in sanctions), and (3) Production of DocumentsSet One (and $322.50 in sanctions). On July 10, 2024, Defendant moved for an order deeming admitted the truth of facts in Requests for AdmissionSet One (and $497.50 in sanctions). The four motions are made on the grounds that Plaintiff has failed to serve timely responses and that the sanction requests represent reasonable attorney fees. Plaintiff has not filed opposition to the motions. The Court has no information with respect to whether any verified discovery responses have been provided by Plaintiff since the time the motions were filed. Under the assumption that no such verified responses have been served, the Court will grant all the motions, and will issue an order compelling Plaintiff to respond to the written discovery served upon them (as articulated above) no later than 60 days after service of this order, or such other date as this Court may specify at the hearing on these motions. The Court will order Plaintiff, her attorneys, or both, to pay sanctions in the total amount of the four sanction amounts requested. That is, (1) $585 for the form interrogatories, (2) $322.50 for the special interrogatories, (3) $322.50 for the production of documents request, and (4) $497.50 for deeming the truth of the requests for admission. The total amount is $1,727.50. The Court finds these amounts to be a reasonable sanction for no response motions to compel with respect to Plaintiff. CONCLUSION Defendants motion to compel responses to Special InterrogatoriesSet One is GRANTED. Defendants motion to compel responses to Form InterrogatoriesSet One is GRANTED. Defendants motion to compel responses to Requests for Production of DocumentsSet One is GRANTED. The court orders Plaintiff sixty days after service of this order, to comply with this order. Plaintiff is to serve code-compliant, objection free, verified responses, along with responsive documents for the following: Special InterrogatoriesSet One, Form InterrogatoriesSet One, Requests for Production of DocumentsSet One. Defendants request to deem the truths as admitted for the Requests for AdmissionSet One is GRANTED. The court grants Defendants motion to deem Plaintiff to have admitted the truth of the matters in the Requests for AdmissionsSet One. Defendants request for sanctions is GRANTED in the amount of $1,727.50 against Plaintiff. Sanctions are payable to Defendant within 30 days of service of this order. Dated: August 13, 2024 ___________________________________ Joel L. Lofton Judge of the Superior Court Parties who intend to submit on this tentative must send an email to the court indicating their intention to submit. alhdeptx@lacourt.org
Ruling
Nancy Romo vs. Dylan Joseph Kelsey
Aug 12, 2024 |Unlimited Civil (Motor Vehicle - Personal Inju...) |34-2020-00275098-CU-PA-GDS
SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2020-00275098-CU-PA-GDS: Nancy Romo vs. Dylan Joseph Kelsey 08/13/2024 Hearing on Motion - Other to Reopen Discovery and Compel Deposition in Department 54Tentative RulingPlaintiff Nancy Romo’s (“Plaintiff”) motion to reopen discovery and compel thedeposition of defendant Dylan Joseph Kelsey (“Defendant”) is ruled upon as follows.This motion was set to be heard on shortened time pursuant to the Court’s July 26,2024, Order on Plaintiff’s ex parte application.This action arises out of a February 20, 2018, motor vehicle collision that occurredbetween Plaintiff’s and Defendant’s vehicles. Plaintiff filed her Complaint on February 7,2020, alleging causes of action for motor vehicle and general negligence.The initial trial date in this action was July 16, 2024. As a result, discovery closed onJune 17, 2024, and the last day for discovery motions to be heard was July 1, 2024.Neither party disputes these dates. Trial was continued to August 26, 2024.By this motion, Plaintiff seeks to reopen discovery for the limited purpose of takingDefendant’s deposition.Code of Civil Procedure section 2024.050 provides that “[o]n motion of any party, thecourt may ... reopen discovery after a new trial date has been set. ...” The Courtconsiders the following matters in determining whether to exercise its discretion to grantor deny the motion: (1) The necessity and the reasons for the discovery. (2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier. (3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party. (4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.Plaintiff contends she has a fundamental right to take Defendant’s deposition and thatthe deposition is necessary to reveal facts supporting her case and expected defenses.Plaintiff concedes that Defendant has admitted he was negligent and the sole cause of Page 1 of 5 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2020-00275098-CU-PA-GDS: Nancy Romo vs. Dylan Joseph Kelsey 08/13/2024 Hearing on Motion - Other to Reopen Discovery and Compel Deposition in Department 54the collision, but notes that Defendant has not admitted his negligence was asubstantial factor in causing Plaintiff’s injuries. Plaintiff argues that she needs to takeDefendant’s deposition to avoid surprise at trial and determine how Defendant willtestify as to causation when she calls him to the witness stand. Plaintiff speculates thatDefendant could take the stand and testify that she told him at the scene of the collisionthat she was not injured or that her pain was pre-existing. In addition, Plaintiff contendsthere is sufficient time to take Defendant’s deposition prior to the current trial date ofAugust 26, 2024.Plaintiff further argues she has been diligent in trying to set Defendant’s deposition.Plaintiff initially noticed Defendant’s deposition on August 9, 2023, to take place onAugust 23, 2023. (Declaration of Glenn Guenard (“Guenard Decl.”) ¶ 9, Ex. 3.) Defensecounsel objected on the grounds the date was unilaterally set. (Guenard Decl. ¶ 10, Ex.4.) Plaintiff then noticed Defendant’s deposition on August 18, 2023, to take place onSeptember 19, 2023. (Guenard Decl. ¶ 11, Ex. 5.) Plaintiff then says the “depositionnever took place,” but does not explain why. (Motion at 3:9.) In opposition, Defendantexplains the deposition did not go forward because Plaintiff’s counsel voluntarily agreedto drop the deposition after counsel discussed that liability was not disputed and thatDefendant had no relevant information regarding Plaintiff’s injuries and damages.(Declaration of Randee M. Rolfe (“Rolfe Decl.”) ¶ 4.)Plaintiff did not re-notice Defendant’s deposition until June 4, 2024, approximately 10months later, for the deposition to take place on June 14, 2024, three days prior to thediscovery cut-off date. (Guenard Decl. ¶ 12, Ex. 6.) Defendant objected on the groundneither Defendant nor his counsel were available on June 14, 2024, that Defendant hadadmitted liability, and that the deposition was unlikely to lead to the discovery ofadmissible evidence. (Guenard Decl. ¶ 13, Ex. 7.) Plaintiff’s counsel then met-and-conferred with defense counsel to try to set a deposition date. Ultimately, defensecounsel refused to produce Defendant on the grounds that his deposition testimony wasnot relevant. (Guenard Decl. ¶¶ 15-22.) Defense counsel also indicated there was anagreement amongst the parties to not take Defendant’s deposition, which Plaintiffdisputes. (Guenard Decl. ¶ 19.) After failing to reach an agreement, Plaintiff noticedDefendant’s deposition on July 12, 2024, to take place on July 24, 2024, two days priorto the initial trial date. (Guenard Decl. ¶ 23, Ex. 16.) Defendant objected on the groundsthat discovery was closed, the deposition was unilaterally set, Defendant had admittedliability, and that the deposition was unlikely to lead to the discovery of admissibleevidence. (Guenard Decl. ¶ 25, Ex. 18.) Plaintiff’s counsel e-mailed defense counsel toreconsider their position, to which defense counsel did not respond and this motionfollowed. (Guenard Decl. ¶ 26.)Defendant opposes on the ground that this motion is untimely under Code of Civil Page 2 of 5 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2020-00275098-CU-PA-GDS: Nancy Romo vs. Dylan Joseph Kelsey 08/13/2024 Hearing on Motion - Other to Reopen Discovery and Compel Deposition in Department 54Procedure section 2024.020(a), which requires all discovery motions be heard at least15 days before the initial trial date. Defendant asserts that because the initial trial datewas July 16, 2024, this motion had to be heard by July 1, 2024. This argument isrejected because Plaintiff moved ex parte to have this motion heard on shortened timeand section 2024.050(a) specifically allows a discovery motion to be heard after thediscovery motion cutoff date by providing that “the court may grant leave . . . to have amotion concerning discovery heard, closer to the initial trial date, or to reopen discoveryafter a new trial date has been set.” (Pelton-Shepherd Industries, Inc. v. DeltaPackaging Products (2008) 165 Cal.App.4th 1568, 1586.)Defendant also opposes on the ground that no good cause exists to reopen discovery.Defendant argues his deposition is not necessary because he has admitted liability inthis case, Plaintiff testified at her deposition that she did not really speak to him at thescene and, thus, he does not have knowledge related to her injuries or damages, andhe does not plan to testify at trial. Defendant’s counsel declares she believes Plaintiff’strue intent in deposing Defendant is to attempt to introduce evidence regarding hisintoxication to make the jury dislike him. (Rolfe Decl. ¶¶ 7-8, Exh. C.) Defendant addsthat Plaintiff has not been diligent because she first noticed Defendant’s deposition inAugust of 2023, voluntarily dropped the deposition after speaking with defense counsel,and then waited until the eve of trial to re-notice the deposition. Lastly, Defendantcontends he would suffer prejudice if the motion is granted because it would impact histrial preparations.The Court agrees that Plaintiff has failed to establish good cause to reopen discovery.The Court is not persuaded that Plaintiff has been diligent in seeking Defendant’sdeposition. Plaintiff filed this action on February 7, 2020, and then waited over threeyears before first noticing Defendant’s deposition in August of 2023. Plaintiff provides noexplanation as to why she waited over three years to notice Defendant’s deposition.After Plaintiff finally noticed Defendant’s deposition, Plaintiff then voluntarily dropped thedeposition and continued to wait until the eve of trial before attempting to re-notice thedeposition. Again, Plaintiff does not provide any explanation supporting her delay andsimply argues that because she noticed Defendant’s deposition prior to the discoverycut-off she has been diligent. Plaintiff then attempts to cast blame on Defendant for notsetting a mutually agreeable date after receiving the June 4, 2024, deposition notice.Yet, nowhere does Plaintiff explain why she should be deemed diligent for waiting overfour years to finally obtain Defendant’s deposition. Plaintiff has also failed todemonstrate that the deposition is necessary. Defendant has admitted he was negligentand the sole cause of the action, Plaintiff testified she did not attempt to speak toDefendant at the scene of the accident, and Defendant has represented that he doesnot intend to testify at trial. Plaintiff has not demonstrated that any information sheseeks to obtain through Defendant’s deposition is necessary. To the extent Plaintiff Page 3 of 5 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2020-00275098-CU-PA-GDS: Nancy Romo vs. Dylan Joseph Kelsey 08/13/2024 Hearing on Motion - Other to Reopen Discovery and Compel Deposition in Department 54intends to question Defendant regarding causation, there is no evidence Defendant is ahealth care professional with knowledge regarding the causation of Plaintiff’s injuries orthat he has any knowledge whatsoever in that regard. In short, Plaintiff had ample timeprior to the discovery cut-off date to obtain Defendant’s deposition and move to compeland the Court is not persuaded that noticing a deposition at the last minute withoutexplanation is sufficient to reopen discovery when trial is less than two weeks away.Based on the record, the Court declines to exercise its discretion to reopen discovery totake Defendant’s deposition. Plaintiff’s motion is DENIED.The minute order is effective immediately. No formal order pursuant to California Rulesof Court, Rule 3.1312, or further notice is required.NOTICE:Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar must complywith the following procedure:To request limited oral argument, on any matter on this calendar, you must call the Law and Motion Oral ArgumentRequest Line at (916) 874-2615 by 4:00 p.m. the Court day before the hearing and advise opposing counsel. At thetime of requesting oral argument, the requesting party shall leave a voice mail message: a) identifying themselves asthe party requesting oral argument; b) indicating the specific matter/motion for which they are requesting oralargument; and c) confirming that it has notified the opposing party of its intention to appear and that opposing partymay appear via Zoom using the Zoom link and Meeting ID indicated below. If no request for oral argument is made,the tentative ruling becomes the final order of the Court.Unless ordered to appear in person by the Court, parties may appear remotely either telephonically or by videoconference via the Zoom video/audio conference platform with notice to the Court and all other parties inaccordance with Code of Civil Procedure 367.75. Although remote participation is not required, the Court willpresume all parties are appearing remotely for non-evidentiary civil hearings. The Department 53/54 Zoom Link ishttps://saccourt-ca-gov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear onZoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NO COURTCALLAPPEARANCES WILL BE ACCEPTED.Parties requesting services of a court reporter will need to arrange for private court reporter services at their ownexpense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956. Requirements forrequesting a court reporter are listed in the Policy for Official Reporter Pro Tempore available on the SacramentoSuperior Court website at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court-Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Temporeavailable at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-13.PdfA Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party,the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s ApprovedOfficial Reporter Pro Tempore list.Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a Page 4 of 5 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2020-00275098-CU-PA-GDS: Nancy Romo vs. Dylan Joseph Kelsey 08/13/2024 Hearing on Motion - Other to Reopen Discovery and Compel Deposition in Department 54court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and itmust be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than10 days away. Once approved, the clerk will be forward the form to the Court Reporter’s Office and an officialreporter will be provided. Page 5 of 5
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