Motion To Compel Responses To Request For Statement of Damages

Motion

Cal. Super. - 4th Dist.June 10, 2016

O O © 0 0 ~ N O& O o r b h W w O N a N O N N D N D N N N N N D N D A E s a s y m a a a e e a e n 0 ~ N O O O o A W O N A O O © o O N O O O M O O N a Arthur J. Chapman, Esq., Bar No. 79866 Chelsea L. Zwart, Esq., Bar No. 305951 CHAPMAN GLUCKSMAN DEAN ROEB & BARGER A PROFESSIONAL CORPORATION 11900 WEST OLYMPIC BOULEVARD, SUITE 800 LOS ANGELES, CALIFORNIA 90064-0704 (310) 207-7722 + FAX: (310) 207-6550 Attorneys for Defendant, LES FRAME ENTERPRISES, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE —- CENTRAL MARISOL OROSCO Plaintiff, WESTMINSTER HOME PARK MOBILE ESTATE; NORMA NMN HERNANDEZ; U.S. TRUST COMPANY; MARY H. WEINER TRUSTEE, WESTMINSTER MOBILE ESTATE, LLC, WESTMINSTER MOBILE HOME PARK, LES FRAME, ENTERPRISES, INC. and DOES 1 to 100, Defendants. II"0015.268 Case No.: 30-2016-00857117-CU-PA-CJC Complaint Filed: 06/10/2016 Assigned for All Purposes to: Hon.: James L. Crandall Dept: C-33 NOTICE OF MOTION AND MOTION TO COMPEL PLAINTIFF'S RESPONSE TO REQUEST FOR STATEMENT OF DAMAGES AND REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF ARTHUR J. CHAPMAN [Filed Concurrently with Motion to Compel Plaintiff’s Responses to Request for Production of Documents (Set One); Motion to Compel Plaintiff’s Responses to Form Interrogatories (Set One);; and All Related [Proposed] Orders] Date: July 13,2017 Time: 1:30 p.m. Dept... C-33 RES. ID: 72589254 1 MOTION TO COMPEL PLAINTIFFS RESPONSE TO REQUEST FOR STATEMENT OF DAMAGES AND REQUEST FOR SANCTIONS — \ o O © 0 N N O O O o A h W w D N TO THE COURT, ALL PARTIES HEREIN, AND THEIR ATTORNEYS OF RECORD: NOTICE IS HEREBY GIVENthat on July 13, 2017 at 1:30 p.m., or as soon thereafter as the matter may be heard in Department C-33 ofthe above-entitled court, located at 700 Civic Center Drive West, Santa Ana, California 92701, Defendant LES FRAME ENTERPRISES, INC. (“Les Frame”) will, and hereby does, move this Court for an order compelling Plaintiff MARISOL OROSCO to serve response to Les Frame’s Request for Statement of Damages within seven (7) days of the date of the ruling on this Motion pursuant to California Code of Civil Procedure § 425.11(b); with the dismissal of Plaintiff’s operative complaint against Les Frame to result from any failure by Plaintiff to provide a response within the specified time. PLEASE TAKE FURTHER NOTICE that pursuant to California Code of Civil Procedure § 2023.010, Les Frame will further seek an order imposing a monetary sanction against Plaintiff in the amount of $855.00 for attorneys’ fees and costs arising from Plaintiffs willful discovery non-compliance and deliberate frustration of Les Frame’s legitimate discovery efforts. This Motion is based on this Notice of Motion; the accompanying Memorandum of Points and Authorities; the Declaration of Arthur J. Chapman; the pleadings, records, and files in this action, which Les Frame respectfully request the Court to take judicial notice of pursuant to California Evidence Code §452(d); and such other materials as may be presented to the Court at or before, or in connection with, the hearing on this Motion. DATED: May 16,2017 CHAPMAN GLUCKSMAN DEAN ROEB & BARGER A Professional Corporation ARTHUR J. CHAPMAN CHELSEA L. ZWART Attorneys for Defendant, LES FRAME ENTERPRISES, INC. 0015.268 2 MOTION TO COMPEL PLAINTIFF'S RESPONSE TO REQUEST FOR STATEMENT OF DAMAGES AND REQUEST FOR SANCTIONS S S © 0 0 N O o r A A W w N N N O N N D N D N D N D D N D U D N D A a e y a A m d m d e m e m s m a e C 0 N O O O O r R A W N A O Y W N g D d W N A MEMORANDUM OF POINTS AND AUTHORITIES Defendant LES FRAME ENTERPRISES, INC. (“Les Frame”) hereby submits the following Memorandum of Points and Authorities in support of its Motion to Compel Plaintiff MARISOL OROSCO’s Response to Les Frame’s Request for Statement of Damages. L INTRODUCTION This Motion is necessitated by Plaintiffs failure to respond to Les Frame’s Request for Statement of Damages which was properly served on Plaintiff on January 13, 2017. Pursuant to California Code of Civil Procedure §§ 425.11(b) and 1013(a) (for service by mail), Plaintiff’s responses thereto were due on or before February 2, 2017. As of the date ofthe filing of this Motion, Les Frame has not received any response from Plaintiff. Plaintiff’s response is now more than three (3) months overdue. Accordingly, Les Frame requests that the Court (1) compel Plaintiff serve a response to Les Frame’s Request for Statement of Damages, without objection within seven (7) days of the ruling on this motion; (2) impose a monetary sanction against Plaintiff and her counsel of record in the amount of $855.00; and (3) order Plaintiff’s operative Complaint against Les Frame dismissed with prejudice should Plaintiff fail to serve said response within the time provided by the Court. IL. RELEVANT FACTUAL BACKGROUND Plaintiff filed her Complaint in this action on June 10, 2016, asserting three (3) causes of action for: (1) “Motor Vehicle,” (2) “General Negligence,” and (3) “Premises Liability,” arising out of a pedestrian-vehicle collision on October 17, 2001, and injuries she allegedly sustained as a result thereof. (Chapman Decl., § 2). Les Frame filed its Answer in response thereto on November 29, 2016. (Chapman Decl., § 3). Thereafter, on January 13, 2017, Les Frame served upon Plaintiff its Request for Statement of Damages by mail. (Chapman Decl., § 4). Pursuant to California Code of Civil Procedure §§ 425.11(b) and 1013(a), Plaintiff's response to such discovery was due within twenty (20) days of service, on or before February 2, 2017. (Chapman Decl., § 5). No extension to respond to the discovery was requested or granted. (Chapman Decl., § 6). As of the date of filing this Motion, Plaintiff has not yet served any response to Les 0015.268 3 MOTION TO COMPEL PLAINTIFF’S RESPONSE TO REQUEST FOR STATEMENT OF DAMAGES AND REQUEST FOR SANCTIONS Q O O W 0 ~ N O O O o H A O W N a N N N D N D N N N D D M N D M N a a d a n A a Aa d A A a d a y a e C 0 ~ N O O O r A W O N a O O © O O N O O g b B A W w W N a Frame’s Request for Statement of Damages. (Chapman Decl., § 7). Due to Plaintiff’s failure to provide any response, judicial intervention is necessary. Therefore, Les Frame respectfully submits this Motion pursuant to California Code ofCivil Procedure § 425.11. III. LEGAL ARGUMENT A. Plaintiff Should Be Compelled To Provide A Statement Of Damages. California Code ofCivil Procedure § 425.11(b) states: When a complaint is filed in an action to recover damages for personal injury or wrongful death, the defendant may at any time request a statement setting forth the nature and amount of damages being sought. The request shall be served upon the plaintiff, who shall serve a responsive statement as to the damages within 15 days. In the eventthat a response is not served, the defendant, on notice to the plaintiff, may petition the court in which the action is pending to order the plaintiff to serve a responsive statement. In this case, Plaintiff has failed to respond to Les Frame’s Request for Statement of Damages within the statutory time permitted. Pursuant to California Code of Civil Procedure §§ 425.11 and 1013, Plaintiff's response was due on or before February 2, 2017. No extension to respond to the discovery was requested or granted. As of the date offiling this Motion, Plaintiff has not yet served any response to Les Frame’s Request for Statement of Damages. Based on the foregoing, Les Frame seeks an order from this Court compelling Plaintiff to serve a response to Les Frame’s Request for Statement of Damages within seven (7) days ofthe date of the ruling on this Motion, with the dismissal of Plaintiff’s operative Complaint against Les Frame to result from any failure by Plaintiff to provide a response within the specified time allowed by the Court. B. Sanctions Against Plaintiff and Her Counsel of Record Are Proper As They Have Engaged In Clear Discovery Abuse. California Code of Civil Procedure § 2023.010 et seq. specifically defines the failure to respond or submit to an authorized method of discovery as an abuse of the discovery process. California Code ofCivil Procedure § 2023.030(a) further provides that: // 0015.268 4 MOTION TO COMPEL PLAINTIFF'S RESPONSE TO REQUEST FOR STATEMENT OF DAMAGES AND REQUEST FOR SANCTIONS o O O W 0 0 ~ N O O o a b h o w N N = a N O N ON D N D N D N N N D N N m a a d m d e d m d e m m y w d a d o w C o ~ N O O a A W O N a 0 © O N O O D W w A The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorneys’ fees, including attorneys’ fees incurred by anyone as a result of that conduct. In the present action, Plaintiff’s failure to provide responses to Les Frame’s Request for Statement of Damages constitutes clear and inexcusable discovery abuse. Plaintiff’s Statement of Damages is discovery that is undeniably necessary and essential to Les Frame’s understanding and evaluation of Plaintiff’s claims and defense strategy. There is no justification for any opposition to this Motion, similar to the lack of justification for Plaintiff's discovery misconduct that forced Les Frame to seek judicial intervention. Accordingly, Les Frame respectfully requests that the Court award $855.00 to Les Frame in connection with the reasonable attorneys’ fees incurred bringing this Motion. (Chapman Decl.,§ 8). IV. CONCLUSION In consideration of the foregoing, Les Frame respectfully requests the Court grant this Motion to Compel, ordering Plaintiff to serve a response to Les Frame’s Request for Statement of Damages, within seven (7) days of the ruling on this Motion. In addition, Les Frame respectfully request the Court impose monetary sanctions against Plaintiff and her counsel in the sum of $855.00 in connection with Les Frame having to bring this Motion. DATED: May 16,2017 CHAPMAN GLUCKSMAN DEAN ROEB & BARGER A Professional Corporation \ yo Ny / C of fFBy:Nl / ARTHUR J. CHAPMAN CHELSEA L. ZWART Attorneys for Defendant, LES FRAME ENTERPRISES, INC. 0015.268 5 MOTION TO COMPEL PLAINTIFE’S RESPONSE TO REQUEST FOR STATEMENT OF DAMAGES AND REQUEST FOR SANCTIONS C S © 0 0 N N O o o r b h W w O N a N N O N ON D N D N D N D N D N M N D A d w d a d m d e d e a a d a A m a a o o ~ N O O O o A W N , O O © 0 0 N O O A W N - DECLARATION OF ARTHUR J. CHAPMAN I, ARTHUR J. CHAPMAN,declare: 1. I am an attorney duly admitted to practice before all of the courts of the State of California, and I am a partner of the law firm of Chapman, Glucksman, Dean, Roeb & Barger, attorneys of record for Defendant LES FRAME ENTERPRISES, INC. (“Les Frame”). I have personal knowledge of the following facts, and if called upon as a witness, I could and would competently testify thereto. 2. Plaintiff filed her Complaint in this action on June 10, 2016, asserting three (3) causes of action for: (1) “Motor Vehicle,” (2) “General Negligence,” and (3) “Premises Liability,” arising out of a pedestrian-vehicle collision on October 17, 2001, and injuries she allegedly sustained as a result thereof. 3. Les Framefiled its Answer in this matter on November 29, 2016. 4. On January 13, 2017, Les Frame served upon Plaintiff its Request for Statement of Damages by mail. A true and correct copy of Les Frame’s Request for Statement of Damages is attached hereto as Exhibit “A”. 5. Pursuant to California Code of Civil Procedure §§ 425.11(b) and 1013(a), Plaintiff’s response to Les Frame’s Request for Statement of Damages was due within twenty (20) days of service, on or before February 2, 2017. 6. No extension to respond to the discovery request was requested or granted. 7. As of the date of filing this Motion, Plaintiff has not yet served any response to Les Frame’s Request for Statement of Damages. 8. My associate, Chelsea L. Zwart, Esq., spent one and a half (1.5) hours preparing the attached Motion to Compel. Her time is billed out at $180.000 per hour. In addition, I will expend at least three (3) hours preparing for, traveling to, and appearing at the hearing on this Motion. My timeis billed out at $195.00 per hour. Therefore, Les Frame has unnecessarily been forced to incur legal expenses of $855.00 in connection with bringing this Motion. This amount should be reimbursed to Les Frame via the imposition of monetary sanctions against Plaintiff and I 0015.268 6 MOTION TO COMPEL PLAINTIFF'S RESPONSE TO REQUEST FOR STATEMENT OF DAMAGES AND REQUEST FOR SANCTIONS o O © 0 0 ~ N O O O o A W O N a N O N R N N N N D N N D N D N N D a a d w d a d e y e a w a a a a a a o o ~ N O O a B A O W O N A O © O O N O O O O B A w D . her counsel herein, as mandated under California law. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 15th day of May, 2017, at Los Angeles, California. ARTHUR J. CHAPMAN 0015.268 7 MOTION TO COMPEL PLAINTIFFS RESPONSE TO REQUEST FOR STATEMENT OF DAMAGES AND REQUEST FOR SANCTIONS EXHIBIT “A” © © o o N O o g b h W N = N D O N O N N D N N D N D N D N A O A a W w a a a a 0 ~ N O O b h O N 2 2 C C © N O R N - Arthur J. Chapman, Esq., Bar No. 79866 CHAPMAN GLUCKSMAN DEAN ROEB & BARGER A PROFESSIONAL CORPORATION 11900 WEST OLYMPIC BOULEVARD, SUITE 800 LOS ANGELES, CALIFORNIA 90064-0704 (310) 207-7722 » FAX: (310) 207-6550 Attorneys for Defendant, LES FRAME ENTERPRISES, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE —- CENTRAL MARISOL OROSCO Case No.: 30-2016-00857117-CU-PA-CJC Plaintiff, Complaint Filed: 06/10/2016 v. Assigned for All Purposes to: Hon.: James L. Crandall Dept: C-33 WESTMINSTER HOME PARK MOBILE ESTATE; NORMA NMN HERNANDEZ; U.S. TRUST COMPANY; MARY H. DEFENDANT, LES FRAME WEINER TRUSTEE, WESTMINSTER ENTERPRISES, INC.’S REQUEST FOR MOBILE ESTATE, LLC, WESTMINSTER STATEMENT OF DAMAGES TO MOBILE HOME PARK, LES FRAME, PLAINTIFF MARISOL OROSCO ENTERPRISES, INC. and DOES 1 to 100, Defendants. TO PLAINTIFF PLAINTIFF MARISOL OROSCO AND TO HER ATTORNEYS OF RECORD: Pursuant to the provisions of Section 425.11 of the Code of Civil Procedure, defendant, LES FRAME ENTERPRISES, INC., hereby requests that plaintiff MARISOL OROSCO, serve a statementsetting forth the damages being sought, as follows: 1. o w n 0015.268 Medical expenses incurred to date; Future medical expenses anticipated; Property damage incurred to date; Loss of earnings incurred to date; 1 - d O C © O o ~ N O O o h W N 5. Future loss of earnings; and 6. General damages. DATED: daa 2.2017) 0015.268 CHAPMAN GLUCKSMAN DEAN ROEB & BARGER A Professional Corporation ahdDd ARTHUR J. CHAPMAN Attorneys for Defendant, LES FRAME ENTERPRISES, INC. A h O W N O O 0 0 9 v y W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I am employed in the County of Los Angeles, State of California, I am over the age of 18 and not a party to the within action; my business address is 11900 W. Olympic Boulevard, Suite 800, Los Angeles, CA 90064. On January 13, 2017, I served the foregoing document(s) described as: DEFENDANT LES FRAME ENTERPRISES, INC.’S REQUEST FOR STATEMENT OF DAMAGES T O PLAINTIFF MARISOL OROSCO on the interested parties in this action, at the addresses listed below, as follows: LAW OFFICES OF SUNIL SHAH 722 E. Lincoln Ave. Orange, CA 92865 714.921.1809 Attorneys for Plaintiff MARISOL OROSCO Xl (BY MAIL) I placed said document in an envelope addressed as shown on the service list. [ am "readily familiar" with the firm's practice of collection and processing correspondence for mailing with the United States Postal Service. Under that practice, said correspondence will be deposited with the United States Postal Service the same day in the ordinary course of business. I sealed said envelope and placed it for collection and mailing on the date stated below to the addressed stated on the attached service list, following the firm' s ordinary business practices. HN (BY OVERNIGHT DELIVERY) I enclosed a true and correct copy of said document in an Overnite Express envelope addressed as set forth on the service list. The envelope was sealed and deposited with Overnite Express the same day in the ordinary course of business at Los Angeles, California. (ELECTRONIC MAIL) I transmitted a true and correct copy of said documentto the addressees on the service list via Electronic Mail. (STATE) I declare under penalty of perjury under the lawsofthe State of California that the foregoing is true and correct. Executed on January 13, 2017, at Los Angeles, California. Stliaad> © S(Margetis 0015.268 1 Zwart, Chelsea From: Sent: To: Subject: donotreply@occourts.org Monday, May 15, 2017 11:16 AM Zwart, Chelsea Superior Court of Orange County - Motion Reservation Request - CONFIRMATION ) Your reservation request has been CONFIRMED by the Superior Court. The hearing date and time below has been reserved. You will be asked to provide your reservation numberto the court at a later date. MOVING PAPERS MUST BE E-FILED WITHIN 24 HOURS AFTER COMPLETING THE ON-LINE RESERVATION. Failure to submit your moving papers within 24 hours will result in the automatic CANCELLATION of the reservation. NOTE: To EXPEDITE your MOTION filing place the appropriate Court Reservation number (e.g. 7XXXXXXX) on each Motion being submitted. Please do not reply to this email. Reservation Humber: 72589254 Hearing Date: July 13, 2017 Hearing The: 1:30 PM Department: C33 Motion Type: Motion for Discovery Case Number: 30-2016~00857117-CU-PA-CIC Case Tila: Orosco vs. Hernadez Judicial Officer Hon. James Crandall Email: czwart@cgdrblaw.com Date of Request: May 15, 2017 Time of Request: 11:14 AM Transaction Number: 487741053