Case Number: SC120709    Hearing Date: August 13, 2014    Dept: M

Tentative Ruling
Zale Design Studio v. Leevan
SC120709

Plaintiff provided interior design services and materials to Defendant/Cross-defendant Leevan. After a dispute arose, Plaintiff filed this collection action against Leevan. Leevan cross-complained, alleging, inter alia, overbilling and fraud by Plaintiff. Defendant/Cross-complainant, Leevan, has brought 3 motions:
1. Motion for leave to file first amended cross-complaint;
2. Motion to compel further responses to FROG #9.1; and
3. Motion to extend Plaintiff’s deposition.

Levan’s Motion for Leave to File First Amended Cross-Complaint

Levan seeks leave to file an amended cross-complaint which, among other things, deletes his cross-claim under B & P 17200, and adds cross-claims for civil RICO and fraudulent transfer, based on facts which he asserts he discovered during the course of discovery. Zale did not file an opposition brief.

GRANTED:

Having read and considered the moving papers, the court tentatively grants Levan’s request pursuant to CCP 426.50 and rules as follows:

1. CCP 426.50 states that a party who fails to plead a cause of action …, whether through oversight, inadvertence, mistake … or other cause, may apply to the court for leave to …file a cross-complaint to assert such cause at any time during the course of the action. The court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to …to file the cross-complaint, to assert such cause if the party who failed to plead the cause acted in good faith. This subdivision shall be liberally construed to avoid forfeiture of causes of action;
2. CCP 473(a)(1) provides that a party may be permitted to amend its pleadings to correct a mistake “in furtherance of justice.”;
3. “[C]ourts are bound to apply a policy of great liberality in permitting amendments … at any stage of the proceedings, up to and including trial….” Magpali v. Farmers Group, Inc. (1996) 48 CA 4th 471, 487;
4. “At any time during the course of the lawsuit, the court retains power to permit defendant to file or amend a cross-complaint to avoid forfeiture of defendant’s related claim. The court shall grant leave as long as defendant is acting in good faith.” Silver Organizations Ltd. V. Frank (1990) 217 CA 3d 94, 98-99;
5. “If defendant’s cause of action against plaintiff is related to the subject matter of the complaint, then it must be raised by cross-complaint…failure to plead it will bar defendant from asserting it in any later lawsuit.” AL Holding Co. v. O’Brien & Hicks, Inc. (1999) 75 CA 4th 1310, 1313-1314;
6. In light of the foregoing and the moving party’s compliance with the procedural requirements of CRC 3.1324(b) (requirements of declaration in support of motion seeking leave to amend), and based on the lack of opposition, the Court will grant the motion;
7. Motion for leave to file amended cross-complaint is granted. A FACC identical to that lodged on July 21, 2014, but without any redlining, is to be served an filed within three court days.

Levan’s Motion to Compel Further Response to FROG 9.1

Levan seeks an order compelling Plaintiff’s further response to FROG 9.1, which pertains to damages alleged to have been suffered. In her response to that interrogatory, Plaintiff claims that she is entitled to “interest and attorney’s fees, costs, and other expenses allowed by the law….” Levan repeatedly pressed Plaintiff’s counsel to serve a supplemental response specifying exactly what the “other expenses allowed by the law” exactly are; Plaintiff repeatedly refused to do so. Zale claims the response was straightforward and that Levan failed to meet and confer in good faith. Plaintiff not only opposes the motion, she seeks sanctions against Levan. Levan, understandably, filed a reply.

GRANTED:

Having read and considered the moving papers, the court tentatively grants Levan’s request, and rules as follows:

1. The Court chooses to exercise its broad discretion to conclude that Levan engaged in sufficient meet and confer efforts. See, Obregon v. Superior Court (1998) 67 CA 4th 424, 431-35. After numerous attempts to meet and confer, it became obvious to counsel that Plaintiff’s counsel unreasonably refused to budge on the issue; further meet and confer efforts obviously would have been fruitless and thus were not required;
2. Plaintiff’s response to FROG 9.1 not only asserts boilerplate, meritless objections of attorney-client privilege and work-product, it is bereft of substance. On its face, it begs the question: what other expenses allowed by law?
3. Plaintiff is to serve a full and complete, verified further response to FROG 9.1, without objection and in full compliance with CCP 2030.210 – 2030.300, on or before September 23, 2013;
4. The further response provided pursuant to this order is to be clearly captioned as “COURT-ORDERED FURTHER RESPONSE TO FROG 9.1.” This will distinguish it from the initial response;
5. Zale is sanctioned $2,160.00 (12 hours at $175/hr., plus $60.00 filing fee), to be paid within 30 days; and
6. Plaintiff’s request for sanctions is denied with prejudice.

Levan’s Motion to Extend Plaintiff’s Deposition

Defendant/Cross-complainant seeks an order extending the deposition of Linda Zale (who initially brought this action through Zale Design Studio, LLC, but then amended her complaint to bring the action in her individual/dba capacity) past the 7 hour deadline of CCP 2025.290. Plaintiff opposes the motion, asserting that the issue is not ripe yet because Zale has yet to be deposed. As is explained in the reply brief, that assertion lacks merit.

GRANTED:

Having read and considered the moving papers, the court tentatively grants Levan’s request pursuant to CCP 2025.290, and rules as follows:

1. The only question here is whether more than 7 hours is needed to “fairly examine” the deponent. CCP 2025.290;
2. Although a Court which concludes that more time is “fairly needed” “shall” extend the deposition time, the question of whether more time is “fairly needed” is left to the Court’s discretion. See, Certainteed Corporation v. Superior Court (2014) 222 CA 4th 1053, 1062;
3. Here, the Court easily concludes, for the reasons well-stated in the moving and reply briefs, that far more than seven hours is needed to “fairly examine” Zale. Accordingly, it will exercise that discretion to grant the motion. Further, in order to avoid further needless law and motion as to when and where Zale’s deposition will begin, it will order her appearance at deposition;
4. Zale is ordered to appear for her deposition on a mutually agreeable date, within the next 30 days at the Pasadena office of defense counsel. With the exception of reasonable breaks, the deponent shall not leave the deposition unless the parties agree that the deposition has been concluded and that she may leave, or the parties agree on a specific date, time, and place at which the deposition will be resumed;
5. Based on the facts of this action, the Court anticipates that multiple sessions of Zale’s deposition will be required – and expects that Zale will comply accordingly.

OTHER MATTERS:
1. The Court is of the opinion that none of the three motions determined today should have been necessary. The Court is hereby asking counsel to re-orient their approach to this action;
2. Counsel are now ordered to comply with Local Rule 3.26 and Appendix 3A [formerly Rule 7.12], which Local Rule 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;
3. The Court has conducted a preliminary review of Plaintiff’s opposition to Leevan’s statement of proof re CCP 473(b) motion costs and fees filed in connection with the August 29, 2014, hearing to determine the amount of fees and costs which will be imposed on Plaintiff in connection with her motion for leave to file a first amended complaint. It notes, among other things, that Plaintiff is improperly seeking reconsideration of the Court’s June 18, 2014 order granting fees and costs to Leevan;
4. Moreover, Leevan should be prepared for a significant reduction in the fees requested;
5. Unless the request for fees and costs is taken off-calendar by Leevan by telephone call to the court clerk and by written notice at least five court days prior to August 29, 2014, Robert H. Stellwagen and Wesley Krueger are each ordered to personally appear at the August 29, 2014 hearing. No telephonic appearance or appearance by associate or appearance attorney will be permitted;
6. This Court will be awarding fees and costs to Leevan – it made that clear at the June 18, 2014 hearing. The only question is the amount of fees and costs to be awarded. The parties should strive to informally resolve that issue rather than further waste their time and resources (and the Court’s time and resources) fighting it out.

NOTICE

Levan shall give notice of today’s rulings and timely file proof of service thereof.