Case Number: 18PSCV00016 Hearing Date: September 23, 2019 Dept: J

HEARING DATE: Monday, September 23, 2019

NOTICE: Motion #1: OK[1]

Motion #2: OK[2]

RE: Murguia v. Hernandez, et al. (18PSCV00016)

______________________________________________________________________________

1. Plaintiff Virginia Murguia’s MOTION TO STRIKE DEFENDANT HERNANDEZ’S NOTICE OF APPEAL AND NOTICE OF ERRATA REGARDING NOTICE OF APPEAL

Responding Party: None (unopposed, as of 9/12/19, 3:00 p.m.; due 9/10/19)

2. Plaintiff Virginia Murguia’s MOTION FOR TERMINATING SANCTIONS AGAINST

DEFENDANT JACQUELYN HERNANDEZ FOR DISCOVERY ABUSE

Responding Party: None (unopposed, as of 9/12/19, 3:00 p.m.; due 9/10/19)

Tentative Ruling

1. Plaintiff Virginia Murguia’s Motion to Strike Defendant Hernandez’s Notice of Appeal and Notice of Errata Regarding Notice of Appeal is GRANTED.

2. Plaintiff Virginia Murguia’s Motion for Terminating Sanctions Against Defendant

Jacquelyn Hernandez for Discovery Abuse is GRANTED. Hernandez’s answer filed May

28, 2019 is stricken.

Background

Plaintiff Virginia Murguia (“Plaintiff”) is the 89-year-old mother of Jackie Hernandez (“Hernandez”). Plaintiff alleges that Hernandez has attempted to alienate Plaintiff from Plaintiff’s other children and grandchildren for the sole purpose of taking control of Plaintiff’s assets. Plaintiff alleges Hernandez hired attorney Craig Darling (“Darling”) purportedly for Plaintiff’s behalf to have multiple TROs taken out against Plaintiff’s children and grandchildren. Plaintiff further alleges that Hernandez tricked Plaintiff into signing over to Hernandez a quitclaim deed to Plaintiff’s home located at 1715 Clover Street in La Verne and Plaintiff’s commercial property located at 4020 N. Figueroa Street in Los Angeles. On October 15, 2018, Plaintiff filed a complaint, asserting causes of action against Defendants Hernandez, Darling, Law Office of Craig A. Darling (“Darling Law”), All Persons Unknown, Claiming Any Legal or Equitable Right, Title, Estate, Lien, or Interest in the Properties Described in the Complaint Adverse to Plaintiff’s Title, or Any Cloud Upon Plaintiff’s Title Thereto and Does 1-20 for:

Quiet Title

Financial Elder Abuse

Fraud

Intentional Infliction of Emotional Distress

Conversion

Legal Malpractice

On November 14, 2018, Plaintiff’s “Ex Parte Application for Temporary Restraining Order and Order to Show Cause Regarding Preliminary Injunction” was heard; at that time, the court issued a temporary restraining order and set an Order to Show Cause Re: Preliminary Injunction for November 28, 2018. On November 28, 2018, the court dissolved the temporary restraining order issued on November 14, 2018, reissued a temporary restraining order on that date and set an Order to Show Cause Re: Preliminary Injunction for December 18, 2018.

On December 18, 2018, the court denied Plaintiff’s request for a preliminary injunction and dissolved the temporary restraining order. On February 15, 2019, the court granted Plaintiff’s Application for Temporary Restraining Order and Order to Show Cause Regarding Preliminary Injunction and set an Order to Show Cause Re: Preliminary Injunction for March 18, 2019.

On February 27, 2019, the court sustained Darling’s and Darling Law’s demurrer to the fourth cause of action and granted their motion to strike punitive damages.

On March 18, 2019, the court denied Plaintiff’s request for a preliminary injunction and dissolved the temporary restraining order issued on February 15, 2019; that day, the court granted Plaintiff’s “Ex Parte Application for Temporary Restraining Order and Order to Show Cause Regarding Preliminary Order” and set an Order to Show Cause Re: Preliminary Injunction for July 17, 2019.

On May 8, 2019, the court granted Plaintiff’s motion for trial preference. On July 17, 2019, the Order to Show Cause Re: Preliminary Injunction was granted.

On July 19, 2019, Plaintiff dismissed Darling and Darling Law, with prejudice.

On August 12, 2019, Hernandez filed a Notice of Dissociation of Counsel of Steven Giammichele.

On August 15, 2019, Hernandez “in pro per” filed a Notice of Appeal. On August 16, 2019, Hernandez “in pro per” filed a “Notice of Errata Regarding Notice of Appeal.” On September 5, 2019, the court granted counsel for Hernandez’s motion to be relieved as counsel.

A Final Status Conference is set for September 30, 2019. Trial is set for October 8, 2019.

1. Motion to Strike

Discussion

Plaintiff moves the court for an order striking Hernandez’s Notice of Appeal and Notice of Errata Regarding Notice of Appeal.

Although no statutory authority is provided by Plaintiff, CCP § 187 states that “[w]hen jurisdiction is, by the Constitution or this Code, or by any other statute, conferred on a Court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if in the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code.”

“While a party to an action may appear in his own proper person or by attorney, he cannot do both. If he appears through an attorney, such attorney has the management and control of the action. If a party becomes dissatisfied with his attorney he may make a change. Until this has been done the client cannot assume control of the case.” (Anglo California Trust Co. v. Kelly (1928) 95 Cal.App. 390, 393-394; Epley v. Califro (1958) 49 Cal.2d 849, 854 [“The attorney of record has the exclusive right to appear in court for his client and neither the party himself nor another attorney should be recognized by the court in the conduct or disposition of the case. Under section 285 written notice of the substitution of a new attorney must be given to the adverse party. Until then the attorney of record must be recognized as his exclusive representative”].)

On August 12, 2019, Hernandez’s attorney, Reid Winthrop (“Winthrop”), filed his Motion to be Relieved as Counsel. Simultaneously, Winthrop filed a Notice of Dissociation of Counsel of Steven Giammichele. The Motion to be Relieved as Counsel, which was granted by the court on September 5, 2019, was opposed by Hernandez. Hernandez’s Notice of Appeal and Notice of Errata Regarding Notice of Appeal were both filed by Hernandez “in pro per” on August 15, 2019 and August 16, 2019, dates when Hernandez was still represented by Winthrop. This is improper. Accordingly, Plaintiff’s motion is GRANTED.

2. Terminating Sanctions

Legal Standard

If a party fails to comply with a court order compelling discovery responses or attendance at a deposition, the court may impose monetary, issue, evidence, or terminating sanctions. (CCP §2025.450(h) [depositions]; §2030.290(c) [interrogatories]; §2031.300(c) [demands for production of documents].) CCP §2023.030 provides that, “[t]o the extent authorized by the chapter governing any particular discovery method . . . , the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose . . . [monetary, issue, evidence, or terminating] sanctions against anyone engaging in conduct that is a misuse of the discovery process . . .”

“The court may impose a terminating sanction by one of the following orders: (1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process. . .(4) An order rendering a judgment by default against that party.” (CCP § 2023.030(d).) “Misuses of the discovery process include, but are not limited to, the following:…(d) Failing to respond or to submit to an authorized method of discovery. . .(g) Disobeying a court order to provide discovery . . .” (CCP § 2023.010.)

A prerequisite to the imposition of the dismissal sanction is that the party has wilfully failed to comply with a court order. (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280; Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 487 disapproved of on other grounds in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, fn. 4.; Young v. Rosenthal (1989) 212 Cal.App.3d 96, 114.) “Discovery sanctions should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.” (Young, supra, 212 Cal.App.3d at 118-119 [internal quotations and citation omitted].) Preventing parties from presenting their cases on the merits is a drastic measure; terminating sanctions should only be ordered when there has been previous noncompliance with a rule or order and it appears a less severe sanction would not be effective. (Link v. Cater (1998) 60 Cal.App.4th 1315, 1326.)

Discussion

Plaintiff moves the court for terminating sanctions against Hernandez by striking her answer, on the basis that Hernandez has blatantly violated court orders.

On August 5, 2019, the court granted Plaintiff’s motions to compel responses to form and special

interrogatories and requests for production of documents and ordered Hernandez to serve on

Plaintiff verified responses, without objections, within 20 days of the hearing date. (Jackson

Decl., ¶8, Exh. E.) The court also ordered that Hernandez pay monetary sanctions to Plaintiff in

the amount of $1,260.00 within 20 days of the hearing date. On August 6, 2019, Plaintiff filed

and served via electronic mail a “Notice of Ruling at August 5, 2019 Hearing.” Hernandez has

failed to comply with the court’s August 5, 2019 order. (Id., ¶8.)

The court determines that Hernandez’s failure to comply with the August 5, 2019 order amounts to willful disobedience. Hernandez’s counsel appeared at the hearing and notice of the order was served via electronic mail on Hernandez’s counsel on August 6, 2019. Furthermore, although Hernandez was properly served with the instant motion for terminating sanctions, Hernandez has not opposed same.

The court also notes that, although the court on July 17, 2019 ordered counsel for Hernandez to file Hernandez’s address with the court under seal, there is no indication that Hernandez complied with this order. (Id., ¶6, Exh. C.) The court further notes that Hernandez has made numerous attempts to delay this instant litigation by purposefully attempting to evading service of various documents and by hiring and firing multiple sets of lawyers. Hernandez has also apparently refused to submit for deposition (Id., ¶9, Exh. G.) and has filed documents in pro per, while being represented by counsel. Although terminating sanctions are a harsh penalty, the above evidence demonstrates that Hernandez’s compliance with the court’s orders cannot be achieved through lesser sanctions.

The motion is GRANTED. The court orders that Hernandez’s answer filed May 28, 2019 be stricken.

[1] The motion was filed August 27, 2019 and originally set for hearing on December 11, 2019. On August 29, 2019, the court granted Plaintiff’s ex parte application to advance the hearing on the motion to August 29, 2019 and continued same to September 23, 2019. On August 30, 2019, Plaintiff filed and e-mailed a “Notice of Ruling at August 29, 2019 Hearing.”

[2] The motion was filed August 29, 2019 and originally set for hearing on December 16, 2019. On September 5, 2019, the court granted Plaintiff’s ex parte application to advance the hearing on the motion to September 5, 2019 and continued same to September 23, 2019. On September 5, 2019, Plaintiff filed and mail-served a “Notice of Ruling at September 5, 2019 Hearing.”