Motion To Strike

Motion

Cal. Super. - 4th Dist.December 15, 2017

NO 0 N N S N nn A W N = DN N N N N N N N N e m e m e m e m m m e m me d e d ee d e t 0 N N LL bh W N = O O NO NN N R E W N = O Edward W. Choi, State Bar No. 211334 Paul M. Yi, Esq. SBN 207867 ELECTRONICALLY FILED Superior Court of Califarnia, LAW OFFICES OF CHOI & ASSOCIATES, APLC County of Orange 515 S. Figueroa St., Suite 1250 Los Angeles, CA 90071 Telephone: (213) 381-1515 Facsimile: (213) 465-4885 Attorneys for Plaintiff RAUL TOCOL 01/14/2019 at 03:29:00 FM Clerk of the Superior Court By Alan Silva, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE NORTH JUSTICE CENTER - UNLIMITED CIVIL RAUL TOCOL, an individual, Plaintiff, vs. GOOD HANDS SENIOR CARE, LLC, a Limited Liability Company, CYNTHIA B. TADEQ, an individual, DANIEL JINWANG YOO, an individual, and DOES 1 through 30, inclusive, Defendants. p l N r ” Ne ar ” N a a ” c a ” Na st ’ N a t “e ss e? “ a t “w as n “s ea “s wa n “s gt ” “s ap “s eg a “s et “s ag t “ s e t “ s t “s ag a se “ s e t “s ca t “ a t t Case No.: 30-2017-00961727-CU-OE-NJC Assigned for All Purposes to Honorable Craig Griffin in Department N17 PLAINTIFF'S MOTION TO STRIKE DEFENDANT’S ANSWER AND ENTER DEFENDANT'S DEFAULT PURSUANT TO LOCAL RULE 381 FOR DEFENDANTS FAILURE TO COMPLY WITH LOCAL RULE 317 03/04/2019 2:00 PM TRIAL DATE: January 22,2019 TIME: 9:00 a.m. DEPT: N17 PLAINTIFF'S MOTION TO STRIKE DEFENDANTS ANSWER AND ENTER DEFENDANT'S DEFAULT - | NO 0 N N N nn RAR W N N N N N N N N N N = e m me e m e m e m e m e a e e ee RW N N N B R A W N = O OC N O N R W NN = O TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT on January 22, 2019 at 9:00 a.m. or as soon thereafter as may reasonably be heard in Department N17 of the above-referenced court, Plaintiff RAUL TOCOL will and hereby moves this Court for to strike Defendant CYNTHIA B. TADEQO’s Answer to the Complaint and enter default against Defendant CYNTHIA B. TADEO for failure to comply with the Local Rules. This motion is made under the provisions of Orange County Superior Court Rules 317 and 381 and is based upon the supporting Memorandum of Points and Authorities, Declaration of Paul M. Yi and the pleadings and papers on file in this action, and upon such of the argument and evidence as may be presented prior to or at the hearing of this matter. DATED: January 14, 2019 Respectfully Submitted: LAW [ & ASSOCIATES Paul M. Yi, Attorneys for PRiatiff RAUL TOCOL PLAINTIFF'S MOTION TO STRIKE DEFENDANT’S ANSWER AND ENTER DEFENDANT'S DEFAULT -2 OO 0 ~~ A nm BA W N N O N RN N O N N N N N mm e m e a e m e m e m p m pe d p i pe 0 NN O N nn BA W N = O O D N O N Y R W N = MEMORANDUM OF POINTS AND AUTHORITIES L INTRODUCTION On December 15, 2017, Plaintiff RAUL TOCOL filed the instant Complaint against Defendants GOOD HANDS SENIOR CARE, LLC, CYNTHIA B. TADEO and DANIEL JINWANG YOO, for (1) failure to pay overtime wages in violation of Labor Code §1194; (2) failure to provide meal and rest periods in violation of Labor Code §226.7; (3) violation of Labor Code §203; and (4) failure to keep accurate records in violation of Labor Code §226. On January 18, 2018, Defendant CYNTHIA B. TADEO ("TADEQ") filed her answer. On March 9, 2018, default was entered for Defendants GOOD HANDS SENIOR CARE, LLC, a Limited Liability Company and DANIEL JINWANG YOO, an individual. Thus, the currently scheduled trial is against Defendant TADEO and a default prove up against Defendants GOOD HANDS SENIOR CARE, LLC and DANIEL JINWANG YOO. On May 11, 2018, the Case Management Conference was held in Department 17 of this Court, Trial was scheduled for January 22, 2018. Based on the trial date, pursuant to the Local Rule 317 and Department 17’s Trial Procedures, an issue conference must be held at least 10 days prior to the trial date, or January 12, 2019. Plaintiff's counsel has reached out to Defendant TADEQO's counsel numerous times to discuss the preparation of joint trial documents. On December 20, 2018, Plaintiff’s counsel called and left a voicemail for Defendant TADEQ’s counsel requesting a return call to discuss trial and joint trial documents and confirmed the same via email. (Declaration of Paul M. Yi (“Yi Decl.”) 42; Exhibit A). On January 2, 2019, Plaintiff’s counsel left a voice message for Defendant TADEO’s counsel for a return call to meet and confer regarding the trial documents and confirmed the same via facsimile and mail. (Yi Decl. {3; Exhibit B) On January 3, 2019, Plaintiff again left a message. (Yi Decl. §4) On January 8, 2019, Plaintiff's attorney faxed, emailed, and mailed a letter for a call from Defendant TADEO?’s counsel. (Yi Decl. 5; Exhibit C). As of the date of this Motion, Defendant TADEQ’s counsel has not responded to all of the above communication. (Yi Decl. 6) Based on Defendants failure to engage in the pre-trial conference, Plaintiff requests that the Court use its discretion to strike Defendant’s Answer and enter default against Defendant. PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S ANSWER AND ENTER DEFENDANT'S DEFAULT - 3 No 0 N N N Nn R W BN O N N N N N N N N N m m i mm p d mt mt p m m d e m 00 NN A Un Bs W N = O O R O N B R N -- OO A. II. ARGUMENT DEFENDANT TADEO HAS FAILED TO MEET AND CONFER AS REQUIRED BY THE LOCAL RULES AND THIS DEPARTMENT Pursuant to Orange County Superior Court Rule 317, the following is required: An issue conference will be required in all cases at least 10 days prior to trial, at which time the parties are to meet and confer and execute necessary documents as listed below. Plaintiff must arrange the issue conference at a mutually agreeable time and location. At the issue conference the parties must: A. Exchange exhibits and inspect photos and diagrams (to be submitted on the date of trial), excluding those contemplated to be used for impeachment or rebuttal. Stipulate to all facts amenable to stipulation. Prepare a Joint Statement of the Case (Jury Trials only). Prepare a Joint Witness List, excluding impeachment or rebuttal witnesses. Prepare a Joint List of Controverted Issues. If all the parties fail to agree to an issue as controverted or uncontroverted, then the issue is controverted. F. Exchange all motions in limine. G. Prepare voir dire questions for the court to include in its voir dire (Jury Trials only). H. Execute a Statement of Compliance. i o o The above items, including opposition to motions in limine, trial briefs and the Statement of Compliance signed by all counsel and self- represented parties, must be submitted to the courtroom clerk in the department of the judicial officer to whom the case has been assigned for trial no later than noon of the Friday before trial. NOTE: Failure to conduct the issue conference as required may result in sanctions pursuant to Rule 381. Department N17’s Procedures Section III. D. requires that the preparation of joint exhibit lists. As stated more fully above, Plaintiff has been unable to engage in the Court’s required Issue Conference because of Defendant TADEQ’s utter lack of cooperation. B. THE COURT HAS POWER TO EXCLUDE DEFENDANTS WITNESSES AND DOCUMENTS Orange County Superior Court Local Rule 381 states: “Upon notice and after hearing, if the court finds any counsel, a party represented by counsel, or a self-represented party has failed to comply with these local court rules or has not proceeded with due diligence in preparing the case for trial, the court, on motion of a party or on its own motion, may: PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S ANSWER AND ENTER DEFENDANT'S DEFAULT - 4 Oo XX N N N nn Bs W N N O N N N NN N N N N m m o e m e m e m e t e m em mm m d ee 0 NN O N wn A W N = O D N ND R A W NY -= Oo A. Strike all or any part of any pleading of that party; B. Dismiss the action or proceeding or any part thereof; C. Enter a judgment by default against that party; D. Impose other penalties of a lesser nature as provided by law, and/or; E. Order that party or his or her counsel to pay the moving party the reasonable expenses incurred in making, and/or appearing at the hearing of, the motion, including reasonable attorney fees.” Orange County Superior Court Local Rule 381. In the instant case, given Defendant TADEO’s complete failure to meet and confer with Plaintiff] to prepare for trial, Plaintiff requests that the trial court strike Defendant’s Answer to the Complaint and enter default against Defendant TADEO pursuant to Local Rule 381 (A) and (C). Based on the January 12, 2019 deadline to hold the Issue Conference, Plaintiff was unable to file and serve this Motion prior to January 14, 2019 and therefore, although the Local Rule is silent on whether statutory notice is to be followed, Plaintiff requests that the notice provided be sufficient for the Court to exercise its discretion in enforcing the Court’s local rules. III. CONCLUSION For all the reasons stated above, Plaintiff requests that this Court strike Defendant TADEQO’s Answer to the Compliant and enter default against Defendant TADEO pursuant to Local Rule 381 (A) and (C). Dated: January 14, 2019 Respectfully Submitted, LAW OFFICES OF CHOI & ASSOCIATES Paul M. Yi, Attorneys for Plaintiff RAUL TOCOL PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S ANSWER AND ENTER DEFENDANTS DEFAULT - 5