Case Number: SC120499 Hearing Date: April 08, 2014 Dept: P

TENTATIVE RULING – DEPT. P

APR. 8, 2014 CALENDAR No: 3

SC120499 — RODRIGUES v. STEELE, et al.

DEFENDANTS’ DEMURRER TO COMPLAINT

The demurrers to all nine causes of action demurred to are sustained with leave to amend.

With regard to the 1st, 2nd, 7th, and 8th – 11th causes of action:

The running of the applicable statutes of limitations must appear “clearly and affirmatively” from the dates alleged in the complaint. Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.

Plaintiff impliedly asserts that under the “discovery rule,” the statute of limitations as to the 1st, 2nd, 7th, and 8th – 11th claims were tolled, viz., that until the summer of 2012, when he confronted Steele, he had no reason to bring any claim against Steele. However, at this time, Plaintiff has not properly pled the facts necessary for the discovery rule to apply.

Under the discovery rule, “the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her.” Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110. Thus, “the limitations period begins once the plaintiff ‘ ” ‘has notice or information of circumstances to put a reasonable person on inquiry…. ‘ ” ‘ [Citations.] A plaintiff need not be aware of the specific ‘facts’ necessary to establish the claim; that is a process contemplated by pretrial discovery. Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her.” Id. at 1110-1111 (emphasis in original).

Plaintiff has not pled facts showing that the discovery rule applies here, even though it is his burden to do so. Indeed, a plaintiff who intends to rely on the discovery rule must allege specific facts showing (1) the time and manner of the discovery and (2) the inability to have made earlier discovery despite reasonable diligence. CAMSI IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525, 1536-1537. Indeed, “[m]ere conclusory assertions that delay in discovery was reasonable are insufficient and will not enable the complaint to withstand general demurrer.” Id. “This pleading requirement is a procedural safeguard against lengthy litigation on the issue of accrual.” Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d.1125, 1150-1151. Considering the nature of the business relationship alleged in the complaint, Plaintiff must provide, in a cogent fashion, specific facts supporting his assertion that it was not until the summer of 2012 that he first had reason to bring suit.

The foregoing is not intended to constitute a discussion of all of the defects in the 1st, 2nd, 7th, and 8th – 11th causes of action as they are currently pled.

With regard to the 5th and 6th causes of action:

The Court agrees with Defendant’s assertion that these claims are not properly stated. In this regard, the Court questions why the promissory note is not attached to the complaint – particularly considering that Plaintiff asserts that the note has a fee provision, and seeks an award of fees thereunder. See, Complaint, para. 53 and Prayer, para. 12. The Court also marks that the complaint utilizes “the disfavored shotgun (or ‘chain letter’) style of pleading, wherein each claim for relief incorporates by reference all preceding paragraphs, which often masks the true causes of action.” International Billing Services, Inc. v. Emigh (2000) 84 Cal.App.4th 1175, 1179.

The question is whether the Court should permit amendment of any of the nine claims demurred to. Plaintiff made no attempt to show that he can properly amend his complaint, even though it is his burden to do so. Nevertheless, the complaint at bar being the first iteration of the complaint, in the interests of justice, the Court will allow amendment.

DEFENDANTS’ MOTION TO STRIKE PORTIONS OF COMPLAINT

Motion to strike is denied in its entirety with prejudice.

The Court observes that the perfunctory motion lacks any meaningful application of the applicable law to the applicable facts. The Court is aware that predecessor defense counsel, not current defense counsel, filed the motion. Nevertheless, that is not good cause to grant Defendants a “mulligan” on this motion.

First amended complaint, clearly captioned as such, is to be served and filed on or before April 25, 2014. Any written agreement upon which any claim in the FAC is based (such as the promissory note) is to be attached as a tabbed exhibit to the FAC.

PLAINTIFF’S MOTIONS TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, FORM INTERROGATORIES, AND INSPECTION DEMANDS

Plaintiff propounded valid special interrogatories, form interrogatories, and inspection demands on defendant Nicolas Steele (“Defendant”). Upon defense counsel’s request, Plaintiff graciously granted repeated extensions of the time in which to respond. Nevertheless, Defendant responded to Plaintiff’s discovery largely with boilerplate, bad faith objections and obstreperous, evasive responses. Defense counsel then failed to provide supplemental responses as promised.

In his opposition briefs, Defendant offers a host of meritless – and arguably misleading – assertions. Indeed, although Defendant asserts that he provided supplemental responses “without objections,” that statement is, quite obviously, erroneous – all three sets of supplemental responses contain boilerplate, arguably improper “general objections.” This may have been an unintentional mis-statement; nevertheless, counsel are reminded of their duty of candor under Cal. Rules of Professional Conduct, Rule 5-200, and similar ethical rules.

The Court need not and will not address all of Defendant’s assertions; any assertions not specifically addressed herein are rejected.

The opposition brief essentially asserts that the motions at bar are moot based on Defendant’s service of supplemental responses on March 25, 2014 (Plaintiff filed the motions on October 4, 2013). However, the service of the supplemental responses does not deprive the Court of the ability to order Code-compliant further responses. See, e.g., Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390 (defendants’ untimely interrogatory responses did not divest trial court of authority to compel responses).

Indeed, the Court is not required to play “catch as catch can” with regard to eleventh-hour supplemental responses; neither is the opposing side. This is particularly true where a party’s initial discovery responses, such as those served by Defendant, demonstrate a patent disregard of that party’s discovery obligations and have required the opposing party to needlessly incur attorney’s fees in securing obligation with statutory discovery duties.

The Court will compel Defendant’s compliance with his discovery obligations notwithstanding that at this time, no operative complaint is on file. Plaintiff has waited long enough.

All three motions are granted in full.

Defendant is to serve full and complete, Code-compliant, comprehensive, verified responses to all of the form and special interrogatories listed in the moving CRC 3.1020 separate statements, without objection, on or before April 21, 2014. Each response is to be self-contained. The further responses provided pursuant to this order are to be clearly captioned as “COURT-ORDERED FURTHER RESPONSES TO FORM INTERROGATORIES” and “COURT-ORDERED FURTHER RESPONSES TO SPECIAL INTERROGATORIES”

Defendant is to serve verified further responses to all inspection demands listed and reproduced in the CRC 3.1020 separate statement filed in support of the motion, in full compliance with CCP 2031.210 – 2031.250, without objection, on or before April 21, 2014. Each response is to be self-contained. All responsive documents not already produced are to be produced concurrently, including but not limited to those in electronic form. The further responses provided pursuant to this order are to be clearly captioned as “COURT-ORDERED FURTHER RESPONSES TO INSPECTION DEMANDS.”

Defendant is sanctioned in the total amount of $2,150.00 ($1,970.00 in attorney’s fees + $180.00 for filing fees), to be paid by certified check at Plaintiff’s counsel’s office on or before April 21, 2014.

Should Defendant fail to strictly comply with the discovery orders issued today, the Court will consider issuing evidentiary, issue, and/or monetary sanctions upon proper motion. Indeed, Defendant’s counsel is reminded that the “graduated sanctions” approach to an award of terminating sanctions is not required where there is no indication that the imposition of lesser sanctions would compel compliance with discovery obligations. E.g., R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 496.

Defendant should reconsider his approach to discovery in this action. The Court expects the parties to comply with their discovery obligations without the need for Court intervention.

OTHER MATTERS

Counsel are now ordered to comply with Local Rule 3.26 and Appendix 3A [formerly Rule 7.12], which by this order is now made mandatory in this action. A violation of said rule may thus result in the imposition of sanctions under CCP 177.5 and/or CRC 2.30; any sanctions so imposed, in the amount of $1000.00 or more, will be reported to the State Bar pursuant to B&P 6086.7.

Plaintiff is to serve and lodge a proposed “omnibus” order as to all rulings issued today, pursuant to CRC 3.1312.

CASE MANAGEMENT CONFERENCE

Re-set to May 23, 2014 at 9:00 a.m.