Case Number: BC702942 Hearing Date: November 18, 2019 Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

ROBERT MURRAY, et al,

Plaintiffs,

vs.

MANUEL MENDOZA TEJADA, et al.,

Defendants.

CASE NO: BC702942

[TENTATIVE] ORDER DENYING MOTION TO VACATE DEFAULT; DENYING REQUEST FOR DEFAULT JUDGMENT WITHOUT PREJUDICE

Dept. 3

1:30 p.m.

November 18, 2019

RELEVANT HISTORY – MOTIONS TO COMPEL

The Court heard Plaintiffs’ motions to compel on 9/30/19. The Court ruled as follows:

1. Motions to Compel Responses to Discovery

Plaintiffs propounded special interrogatories, set two and RPDs, set two on Defendant on 3/11/19. To date, despite an attempt to meet and confer, Defendant has not served responses. Plaintiffs therefore seek an order compelling Defendant to respond, without objections, to the outstanding discovery and to pay sanctions.

Plaintiffs’ motions are granted. Defendant is ordered to serve verified responses to the outstanding discovery, without objections, within ten days. CCP §§2030.290(a),(b), 2031.300(a),(b).

2. Motion to Compel Deposition

Plaintiffs noticed Defendant’s deposition on 3/11/19, setting the deposition for 4/23/19. On 4/22/19, in response to Plaintiffs’ attorney’s phone call, Defendant indicated an inability to appear. Plaintiff asked for confirmed dates for deposition, but Defendant did not respond.

At this time, Plaintiffs move to compel Defendant’s deposition. The motion to compel is granted. CCP §2025.450(a). Plaintiffs seek an order compelling Defendant to appear within fifteen days. Trial is not scheduled until 10/21/19, and therefore time is not of the essence. Plaintiffs’ attorney and Defendant’s attorney are ordered to meet and confer to choose a mutually agreeable date, time, and location for the deposition. The deposition must go forward within thirty days. If Defendant’s attorney does not meaningfully participate in the meet and confer conversation, Plaintiffs’ attorney may set the deposition unilaterally with ten days’ notice (notice extended per Code if by other than personal service).

The Court notes that Plaintiffs’ Notice of Deposition includes a demand for production of documents. Plaintiffs filed a separate statement concerning the documents in the demand, and the separate statement adequately shows good cause for production of the documents. The Court therefore orders Defendant to produce all of the documents in the demand at the deposition.

3. Sanctions

Sanctions are mandatory. §§2030.290(c), 2031.300(c), 2025.450(c). Plaintiff seeks sanctions in various amounts in connection with each motion. Plaintiff’s attorney bills at the rate of $400/hour. The Court finds this unreasonable in a personal injury action and reduces the rate to $200/hour. The Court awards one hour to prepare each form motion to compel. No opposition was filed and therefore no reply was necessary. The Court awards the requested three hours to appear at the hearing on the motion, but only awards the time once. The Court therefore awards a total of six hours of attorney time at the rate of $200/hour, or $1200 in attorneys’ fees. The Court also awards three filing fees of $60 each, or $180 in costs.

Sanctions are sought and imposed against Defendant and his attorney of record, jointly and severally; they are ordered to pay sanctions to Plaintiffs, by and through counsel of record, in the total amount of $1380, within twenty days.

RELEVANT HISTORY — MOTION FOR TERMINATING SANCTIONS

The Court was originally scheduled to hear Plaintiffs’ motion for terminating sanctions on 8/14/19. The Court issued a tentative ruling granting the motion. However, after hearing on the motion, the Court continued the motion. The Court’s final order noted, “As set forth below, Defendant submitted evidence suggesting the failure to comply with the Court’s May 30, 2019 (apparently 9/30/19) Discovery Orders was the result of attorney mistake and lack of communication, and Defendant intends to comply with the Orders.” The Court went on to note that Defense Counsel promised verifications to the discovery at issue prior to the continued hearing date, and promised to pay sanctions as previously ordered to do so.

The Court continued the hearing to 8/26/19. The Court expressly noted that it was giving Defendant ten more days to comply with the prior order. The Court concluded, “Failure of Defendant to comply will likely result in the granting of Plaintiff’s motion imposing terminating sanctions.”

On 8/26/19, Defendant failed to appear at the hearing. The Court struck his answer and set an OSC re: entry of default/default judgment for 2/26/20.

TODAY’S MOTION TO VACATE DEFAULT

On 9/18/19, in light of the Court’s 8/26/19 ruling, and at Plaintiffs’ request, the Clerk entered Defendant’s default.

Defendant now moves to vacate the default, contending it was entered as a result of Defendant’s mistake, surprise, or excusable neglect. Defendant contends Defendant cannot be located, and it was not Defendant’s fault that he failed to comply with prior discovery orders. Defendant asks, in the alternative, that his insurance company be permitted to intervene in the action.

The motion is denied for several reasons. First and foremost, Defendant was less than candid with Plaintiff and the Court in connection with prior hearings. Defendant, in reply, indicates sometimes Defense Counsel does not like to let Plaintiff’s attorney know that Defendant is missing. That is Defense Counsel’s choice; however, Defense Counsel must live with the consequences of the choice.

Second, Defendant did not appear, at all, at the continued hearing date of 8/26/19. Defense Counsel made express representations of what would happen before 8/26/19, and neither made those things happen nor appeared.

Third, all of the cases cited by Defendant are highly distinguishable. Defendant cites numerous cases wherein a defendant relied on his insurance carrier to file an answer, the insurance carrier failed to do so, and his default was entered. That is not the case here. Defendant submitted the case to his carrier, which timely filed an answer. The case was litigated. For whatever reason, Defendant ceased responding to discovery, and his answer was stricken. These cases are not analogous.

Notably, Defendant’s motion itself is highly confusing. Defense Counsel’s declaration, at ¶4, states, “DEFENDANT has hired two different investigators to contact DEFENDANT.” This is clearly not true. Defendant’s insurance company has hired these investigators, but Defendant has not hired these investigators. Using these terms interchangeably renders the motion nearly non-sensical.

To the extent this is an alternative motion for leave to intervene, it is also denied. The cases cited in support of intervention were not decided after the defendant, clearly acting through his insurance company and insurance-retained attorney, failed to respond to discovery, made inaccurate representations to the Court and the opposing party concerning the status of discovery, and then failed to appear at a hearing on a motion for terminating sanctions. The Court could, and likely would, have considered a motion to intervene PRIOR to imposition of terminating sanctions. It is clear, in this case, that Defendant’s insurance company, through insurance counsel, had imputed notice of Plaintiffs’ request for terminating sanctions, and failed to oppose the request. Intervention AFTER the answer has been stricken is not supported by any cited authority, and is denied.

Finally, the Court notes that Defendant, in the motion, indicates he is willing to stipulate to liability and only contest causation and damages. This does not, however, change the analysis of the motion. The motion to vacate default is denied. The order granting terminating sanctions stands.

REQUEST FOR DEFAULT JUDGMENT

Plaintiffs filed papers in support of their request for default judgment against Defendant on 10/22/19. The request is denied without prejudice at this time. If and when Plaintiffs seek entry of default judgment a second time, they must cure the following defects:

· The request for default judgment is supported solely by the Declaration of Counsel. Counsel lacks personal knowledge of the facts relating to Plaintiff’s medical records. Plaintiff must personally authenticate his own medical records. Plaintiff must lay out, in his declaration, specific facts concerning each medical expense and attach documentation in a manner that can be easily reviewed; simply stating that “all medical bills and records” are attached collectively as an exhibit renders the bills and records unreasonably difficult to review.

· If Plaintiff seeks to recover future medical expenses, Plaintiff must provide specific information about future treatment and cost of treatment. This may include a formal estimate from a doctor, a declaration from a doctor, or other competent evidence.

· Plaintiffs seek to recover $400,000 in general damages. Plaintiffs must provide specific evidence concerning their pain and suffering and emotional distress if they wish to support this request.

· The new e-filing system includes an “Outlines” function that allows parties to create virtual tabs for exhibits, declarations, etc. Counsel must use this function in order to effectuate easier review of the papers in support of default judgment.

Plaintiffs must submit an entirely new default judgment package if and when they wish to renew their request for default judgment against Defendant.

Plaintiffs are ordered to give notice.