Judge Christian R. Gullon, Case Number: 21STCV27035, Date: 2024-04-29 Tentative Ruling

Judge: Christian R. Gullon, Case: 21STCV27035, Date: 2024-04-29 Tentative Ruling

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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.

PLAINTIFFS’ MOTION FOR MONETARY SANCTIONS AGAINST DEFENDANT CALIFORNIA DESIGN CENTER, INC. FOR VIOLATION OF COURT ORDER (C.C.P. § 177.5) AND FAILURE TO COMPLY WITH LOCAL RULES (C.C.P. § 575.2) is DENIED.

This is a personal injury case. Plaintiffs Candy Espinoza Frank Espinoza (collectively, “Plaintiffs”) allege the following against Defendant California Design Center, Inc (“Defendant” or “California Design”): Plaintiffs hired Defendant to do re-modeling work in Plaintiffs' home. As part of the remodel, Defendant's employee relocated Plaintiffs’ Viking refrigerator to Plaintiffs' garage so that Plaintiffs could continue to use the Viking during the remodel, but in the process, Defendant failed to properly secure the Viking in its place. When Plaintiff Candy went to open the Viking, the entire refrigerator began to fall on top of her.[1]

On April 13, 2022, Defendant filed its Cross-Complaint against Viking for Total Indemnity, Implied Partial Indemnity, Declaratory Relief, Equitable Apportionment.[2]

On August 21, 2022, Defendant filed an amended cross-complaint, after Viking filed a Demurrer.

On May 8, 2023, the court granted the Motion for Determination of Good Faith Settlement (CCP 877.6) filed by Viking Range, LLC on 04/07/2023.

On July 10, 2023, the court held proceedings re: Hearing on Motion to Compel DEFENDANT CALIFORNIA DESIGN CENTER, INC., MOTION TO COMPEL VIKING RANGE LLC PERSON MOST KNOWLEDGEABLE TO DEPOSITION AND TO PRODUCE DOCUMENTS; Trial Setting Conference. The court’s minute order provides that a Mandatory Settlement Conference (MSC) is scheduled for 02/15/2024 at 10:30 AM in Department G at Pomona Courthouse South. Section 8 of the MSC instructions provides the following: “All counsel are required to ELECTRONICALLY provide a Settlement Conference brief by 5 p.m. no less than TEN (10) calendar days prior to the hearing.” (7/19/23 Minute Order p. 3 of 5 of PDF.)[4]

On February 15, 2024, the court issued the following minute order re: the MSC: “The matter is NOT called for hearing. As Defendant, CALIFORNIA DESIGN CENTER, INC. has failed to comply with the Court's GENERAL STATEMENT OF POLICIES AND PROCEDURES FOR SETTLEMENT CONFERENCE by failing to file a Mandatory Settlement Conference Brief, the Mandatory Settlement Conference (MSC) scheduled for 02/15/2024 is vacated. All future dates remain as previously set. Parties have been notified telephonically.”[5]

Future hearing dates: The FSC is set for 6/17/24 and the non-jury trial is set for 6/24/24.

Plaintiffs move the court for an order for sanctions pursuant to Code of Civil Procedure (CCP) sections 177.5 and 575.2 against Defendant and/or its counsel, Law Office of Garber, Av & Duncan for their violations of the Court’s July 10, 2023 Minute Order which forced the Court-ordered February 15, 2024 MSC to be taken off-calender. (Motion p. 2.)

A judicial officer shall have the power to impose reasonable money sanctions, not to exceed fifteen hundred dollars ($1,500), notwithstanding any other provision of law, payable to the court, for any violation of a lawful court order by a person, done without good cause or substantial justification. This power shall not apply to advocacy of counsel before the court. For the purposes of this section, the term ‘person’ includes a witness, a party, a party's attorney, or both. Sanctions pursuant to this section shall not be imposed except on notice contained in a party's moving or responding papers; or on the court's own motion, after notice and opportunity to be heard. An order imposing sanctions shall be in writing and shall recite in detail the conduct or circumstances justifying the order. (emphasis and underline added added.)

[I]f any counsel, a party represented by counsel, or a party if in pro se, fails to comply with any of the requirements thereof, the court on motion of a party or on its own motion may strike out all or any part of any pleading of that party, or, dismiss the action or proceeding or any part thereof, or enter a judgment by default against that party, or impose other penalties of a lesser nature as otherwise provided by law, and may order that party or his or her counsel to pay to the moving party the reasonable expenses in making the motion, including reasonable attorney fees. No penalty may be imposed under this section without prior notice to, and an opportunity to be heard by, the party against whom the penalty is sought to be imposed. (b) It is the intent of the Legislature that if a failure to comply with these rules is the responsibility of counsel and not of the party, any penalty shall be imposed on counsel and shall not adversely affect the party's cause of action or defense thereto. (emphasis added.)

Plaintiffs seek (1) monetary sanctions of $1,500.00 payable to the court pursuant to CCP section 177.5 for Defendant/Defense Counsel’s violation failing to timely file its MSC Statement prior to the MSC; and (2) Monetary sanctions of $7,760.00 payable to Plaintiffs pursuant to CCP section 575.2 for Defendant/Defense Counsel’s failure to comply with local rules L.A. Sup.Ct. Rules § 3.10 and § 3.245 in connection with the February 15, 2024 MSC.[7]

According to Defendant’s opposition, the brief was not timely filed “[d]ue to a calendaring error.” (Opp. p. 2:18-19.) And despite Defendant’s attempt at rectifying the issue—quickly filing a brief and conducting the MSC on another date—Department G notified the parties that they could not reschedule due to trial. (Opp. p. 2, see generally Exhibits [email exchanges].)

Effectively, the issue before the court is whether Defense Counsel’s failure to file a MSC brief by 2/5/24 due to an inadvertent calendaring error warrants imposition of monetary sanctions. The court affirmatively answers that in the negative.

As noted in Plaintiffs’ motion, the purpose of CCP section 177.5 is to “compensate public agencies for the cost of unnecessary hearings.” (Motion p. 4, quoting Moyal v. Lanphear (1989) 208 Cal. App. 3d 491, 499.) Accordingly, the decision to impose sanctions under is in the discretion of the trial court. (Motion p. 4, People v. Ward (2009) 173 Cal. App. 4th 1518, 1527, emphasis added.) The trial court's discretion “‘must be exercised in a reasonable manner with one of the statutorily authorized purposes in mind and must be guided by existing legal standards as adapted to the current circumstances.’” (Motion p. 4, quoting Winikow v. Superior Court (2000) 82 Cal. App. 4th 719, 726 [citation omitted]”) (emphasis added).[8]

Here, as witnessed by this court on most cases, attorneys miscalendar dates.[9] To hold that an inadvertent error warrants sanctions would mean the court has engaged in an unreasonable manner, which is contrary to the standard it is to abide by.

To the extent that Plaintiffs contend that a miscalendering is not a valid excuse, their cited authority does not support that contention. (Reply p. 2, citing In re Woodham (2001) 115 Cal.Rptr.2d 431, 445.)

To the extent that Plaintiffs explain that “Defendant’s own insurance adjuster [Tara Strong] admitted to Plaintiffs that even she had the MSC date saved on her own calendar” (Reply p. 2), it is unclear as to the relevance of her knowledge as Defense Counsel was not CC’d on that email. (Arshand Supp. Decl., Ex. D, p. 4 of 6 of PDF.)

To the extent that Plaintiffs argue that Defendant’s violation of this Court's lawful order is not excused by good cause or substantial justification because Defendant “has played multiple games during this case, refusing to properly participate in Mediation by attempting to call it off the morning of, forcing IDCs, and necessitating this Court’s intervention by requiring the Espinozas to file Motions to Compel before it ultimately acquiesced and participated in discovery” (Motion p. 5), the docket does not reveal such dilatory tactics.[10] There is no evidence that Defendant called off the MSC; to the contrary, the court took the MSC off calendar. As for IDCs, the court docket does not reveal multiple IDCs. In fact, the court granted Viking’s GFS in large part due to Defendant’s failure to produce evidence and denied its last-ditch effort to conduct discovery. Even if discovery motions were required, discovery is but intrinsic and required (because it is evidence) in cases. Thus, there is insufficient evidence of Defendant’s “systemic refusal to meaningfully participate in litigation.” (Motion p. 5.)

Therefore, exercising its discretion in a reasonable manner, the court denies the motion pursuant to CCP section 177.5.

For similar reasons above, the court exercises its discretion to deny Defendant/Defense Counsel “to pay to the moving party the reasonable expenses in making the motion, including reasonable attorney fees.”[11]

Based on the foregoing—in that there is no showing that Defendant and/or Defense Counsel has “obstruct[ed] [] the parties’ ability to resolve this case” (Motion p. 5)—the court declines to impose sanctions.

[1] According to the instant motion, Plaintiffs’ orthopedic injuries are so severe that Plaintiffs allege a combined $810,000.00 in damages.

[2] Defendant alleges that Viking was responsible for manufacturing, designing, assembling, and/or distributing the product to Plaintiffs, and that these were the cause of Plaintiff’s injuries. According to the court’s minute order, issued by Judge Daniel M. Crowley, the court reversed its tentative ruling because of the following reason: “[w]hile in the cross-complaint and moving papers, Defendant had not articulated how Cross-Defendant's manufacturing, designing, assembling, or distributing relates to the occurrence of the incident, at argument, Defendant laid out its basis for the cross-complaint.”

[3] According to the minute order, though Viking “correctly points out that equitable indemnity requires that Cross-Defendant and Cross-Complainant be joint tortfeasors that Cross-Defendant be at fault to Plaintiff,” “[h]owever, Cross-Complainant does allege that Cross-Defendant is a joint tortfeasor at fault to Plaintiff.” In addition, the other pertinent allegation the court found suffices to allege comparative fault is the Defendant’s allegation that “the tip over hazard was a known defect at the time the subject fridge was

manufactured/designed/distributed/sold by Viking Range, when there were alternative safer designs at the time of the manufacture/design/distribution/selling of the Refrigerator.” (emphasis added).

[4] Thus, briefs were due by 2/5/24.

[5] On February 8, 2024, the clerk for Department G advised that as Plaintiffs were the only party to submit their MSC briefs, the MSC was being placed off calendar.

[6] The court notified the parties that Defendant’s opposition while referencing exhibits did not provide said exhibits. The 4/23/24 filing provides the exhibits.

[7] L.A. Sup.Ct. Rule § 3.245 provides as follows: “The court may hold a mandatory settlement conference in each case before trial. The settlement conference shall be scheduled a sufficient time after the exchange of appraisals to allow the parties to conduct expert depositions and engage in settlement discussions. All counsel and all persons with settlement authority must attend the settlement conference in person, unless prior arrangements have been made with the court for that person to appear by telephone.” L.A. Sup.Ct. Rule § 3.10 provides as follows: “The court may impose appropriate sanctions for the failure or refusal to comply with the rules in this chapter, including the time standards and/or deadlines, and any court order made pursuant to the rules.”

[8] None of Plaintiffs’ cited cases are factually analogous.

[9] Defense Counsel in opposition also states that when she learned of the problem, she responded that same day “apologizing and letting the Court and Plaintiffs’ counsel know this was simply an inadvertent calendar error, offered to file a brief quickly, and offered to attend the MSC on another date that may be convenient to the settlement.” (Opp. p. 5, emphasis added.) In Reply, however, Plaintiffs’ Counsel contends otherwise: “No offer to reschedule the MSC was ever provided.” (Reply p. 2:22-23.) But according to an email dated 2/8/24, Defendant did indicate that they are “prepared to attend the MSCD on the 15^th or on another date.” (4/23/24 Opp. Ex. A, p. 8 of 58 of PDF.)

[10] “Section 177.5 “was designed to supplement section 128.5, which authorizes a trial court to order a party or a party's attorney, or both, to pay to another party reasonable expenses incurred by that party as a result of bad faith actions or tactics which are frivolous or solely intended to cause unnecessary delay.” (Id. at p. 446.)

[11] And absent a declaration providing the Lodestar factors, it is unclear whether $7,760.00 in costs associated with this motion and the MSC is reasonable.