SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 19, Honorable Socrates P. Manoukian, Presiding
Diane Macias, Courtroom Clerk
TBD, Court Reporter
161 North First Street, San Jose, CA 95113
Telephone: 408.882.2310
To contest the ruling, call (408) 882.2310 before 4:00 P.M.
DISCOVERY TENTATIVE RULINGS
DATE: January 16, 2015 TIME: 9:00 A.M.
PREVAILING PARTY SHALL PREPARE THE ORDER
(SEE RULE OF COURT 3.1312)
LINE 1 / 111CV204991 / A. Himmler vs L. Giles / Click line 1 for tentative ruling /
LINE 2 / 111CV206163 / P. Behm vs Clear View Technologies / Click line 2 for tentative ruling /
LINE 3 / 112CV230794 / Dolby Laboratories Licensing vs Arcsoft / Click line 3 for tentative ruling /
LINE 4 / 112CV230812 / P. Fernandez vs P. Sahota / OFF CALENDAR /
LINE 5 / 112CV234911 / B. Thibadeau vs City of Cupertino / Click line 5 for tentative ruling /
LINE 6 / 112CV237529 / E. Vaden vs Outfitter Ventures / OFF CALENDAR on Courts own Motion
Motion pending before Judge Overton. /
LINE 7 / 113CV242094 / H. Domeniconi vs J. Norton / OFF CALENDAR /
LINE 8 / 113CV250091 / M. Landino vs R. Spatola / Click line 8 for tentative ruling /
LINE 9 / 113CV251835 / H. Gil vs X. Wu / Click line 9 for tentative ruling /
LINE 10 / 113CV254835 / ELSV, LLC vs B. Ko, et al / Click line 10 for tentative ruling /
LINE 11 / 113CV257093 / Collectronics, Inc. v. Nick James Stanley, et al. / Click line 11 for tentative ruling /
LINE 12 / 114CV263042 / J. Garcia vs M. Brown / Click line 12 for tentative ruling /
LINE 13 / 114CV264667 / M. Voskerician vs M. Zuckerberg / Click line 13 for tentative ruling /
LINE 14 / 114CV266238 / N. Tieu vs N. Tieu / Click line 14 for tentative ruling /
LINE 15 / 114CV267301 / Canada Mortgage and Housing Corporation vs Al Burgio / OFF CALENDAR /
LINE 16 / 114CV268791 / S. Deac vs S. Talla, et al / Click line 16 for tentative ruling /
LINE 17 / 114CV269024 / J. Corona vs J. Cai / Click line 17 for tentative ruling /
LINE 18 / 112CV224340 / D. Tinucci vs G. Pieracci / OFF CALENDAR /
LINE 19 / 112CV236494 / M. Palacios Pacheco vs U.S. Sino / OFF CALENDAR /
LINE 20 / 113CV240935 / H. Rivera vs City of Sunnyvale / OFF CALENDAR /
LINE 21 / 113CV241980 / H. Vidal vs T. Thaure / OFF CALENDAR /
LINE 22 / 114CV264518 / L. Cross vs KLA-Tencor Corporation / OFF CALENDAR /
LINE 23 / 114CV265454 / Netapp Inc. vs Nimble Storage / OFF CALENDAR /
LINE 24 / 114CV266573 / L. Varteression vs J. Lund / OFF CALENDAR /
LINE 25 / 114CV266996 / A. Orozco vs T. Buckner / OFF CALENDAR /
LINE 26 / 113CV256853 / E. Hinojos vs Asset Ventures, LLC / Check back at 4:30 p.m. /
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SUPERIOR COURT, STATE OF CALIFORNIACOUNTY OF SANTA CLARA
DEPARTMENT 19
161 North First Street, San Jose, CA 95113
408.882.2310 · 408.882.2299(fax)
http://www.scscourt.org / (For Clerk's Use Only)
Aaron Himmler v. Lidia Giles, Senzala, Inc. / CASE NO. 111CV204991
DATE: 16 January 2015 / TIME: 9:00 / LINE NUMBER: 1
This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.882.2310 and the opposing party no later than 4:00 PM Thursday 15 January 2015. Please specify the issue to be contested when calling the Court and counsel.
On 16 January 2015, the motion of defendant and cross-complainant Lidia Giles (“Giles”) and defendant Senzala, Inc. (collectively “Defendants”) to set aside order granting terminating sanctions was argued and submitted.
Plaintiff Aaron Himmler (“Plaintiff”) filed formal opposition to the motion.
Defendants are reminded that all papers must comply with Rule of Court 3.1110(f).[1]
I. Statement of Facts.
According to the allegations of Plaintiff’s complaint, Defendant Giles operated a restaurant business (“Senzala Brazilian Restaurant”) at 250 E. Java Drive, Sunnyvale, California. Around September 2010, Giles offered Plaintiff a business opportunity to open and operate a bar on the premises of the restaurant. The initial arrangement was for Plaintiff to own and operate the bar business. He was later presented with a draft agreement proposing a partnership between Plaintiff, Giles, and another person in relation to the bar and restaurant businesses. The draft agreement was never signed. Giles later promised to make Plaintiff a shareholder in Senzala, Inc. That never materialized either.
Plaintiff started bartending at the restaurant beginning the end of October 2010, which lasted until the end of March 2011. In the course of this time, Plaintiff spent a total of $62,700 in the form of direct advances to Giles, purchase of supplies and furniture, and other expenses related to the bar business. Part of the money was for the purpose of securing a hard liquor license, since the restaurant only had license to sell beer and wine. Giles never obtained the license.
Plaintiff also alleged that the restaurant’s daily revenue averaged between $500 and $1000 per day, with even higher revenues whenever the restaurant hosted special events. Giles took and kept all the revenues and never shared any part of it with Plaintiff. Nor did she account for Plaintiff, or allowed him access to the books and records of the restaurant. Giles made all the decisions regarding the restaurant business including the bar.
On 7 October 2010, Plaintiff filed a complaint alleging seven causes of action against both Defendants. Plaintiff sought to recover the $62,700, compensation for work, labor, and services rendered, damages for breach of duty of loyalty, dissolution of the partnership, if any was formed, and other remedies.
Despite a grant of extension by Plaintiff, Defendants failed to file an answer to the complaint and were defaulted on15 September 2011. Plaintiff later stipulated to set aside the default and both Defendants filed a joint answer on 7 October 2011. At the same time, Giles alone filed a cross-complaint against Plaintiff alleging breach of oral contract and conversion causes of action. Plaintiff filed an answer to the cross-complaint on 26 October 2011.
On 15 May 2014, the Court imposed terminating sanctions against both Defendants for failure to comply with the Court’s discovery order of 28 February 2014. Defendants’ answer and Giles’ cross-complaint were stricken, and Defendants’ default was ordered to be entered. On 20 October 2014, Plaintiff obtained a default judgment against Defendants for the total amount of $94,416.14.
II. Background to the Terminating Sanctions Order.
On 9 January 2014, Plaintiff filed a motion to compel Defendants' responses to the first sets of form and special interrogatories and request for production of documents, and for monetary sanction. The motion was scheduled to be heard on 28 February 2014.
On 27 February 2014, the Court duly posted a tentative ruling granting the motion to compel responses, and denying the request for monetary sanction. Defendants did not file formal opposition to the motion. Nor did they object to the tentative ruling. On 28 February 2014, no appearances having been made at the hearing, the Court adopted the tentative ruling by minute order. On the same day, the Hon. Judge Manoukian signed a formal order, which was filed and served on all parties by the Court Clerk on 3 March 2014. The Order required Defendants to serve their discovery responses within 20 days of the date of the Order.
On 21 April 2014, having received no responses from Defendants in compliance with the Court Order, Plaintiff filed a motion for terminating and monetary sanctions. In particular, Plaintiff requested the Court for an order striking the answer filed by both defendants, dismissing the cross-complaint filed by Giles, entering the defaults of both defendants, and imposing monetary sanction against both defendants. The motion was scheduled to be heard on 15 May 2014.[2] On 14 May 2014, the Court duly posted a tentative ruling granting the motion as requested. Defendants did not file a formal opposition to the motion. Nor did they object to the tentative ruling.
On 15 May 2014, no appearances having been made at the hearing, the Court adopted the tentative ruling by minute order. On 19 May 2014, the Hon. Judge Manoukian signed a formal order, which was filed and served on all parties by the Court Clerk on 21 May 2014. Subsequently, Plaintiff prepared and submitted a similar order by incorporating the Court's tentative ruling, which was signed on 28 May 2014 and filed on 2 June 2014. There is no record on the Court file showing that Plaintiff served this order on Defendants.
On 11 June 2014, based upon the order filed on 21 May 2014, the Court Clerk entered the default of both defendants. (See "Request for Default" filed by Plaintiff on 11 June 2014, to which was attached an endorsed filed copy of the order filed on 21 May 2014.) After a default prove-up hearing was conducted on 20 October 2014, the Court entered a default judgment in favor of Plaintiff and against Defendants.
On 26 November 2014, Defendants filed the current motion to set aside the order granting terminating sanctions against them, on the grounds of mistake, inadvertence, excusable neglect and attorney error. In addition to the notice of motion, Defendants submitted a memorandum of points and authorities and the declarations of Lidia Giles and Robert J. Anderson, Esq. in support of the motion.
On 29 December 2014, Plaintiff filed a formal opposition supported by a memorandum of points and authorities and the declaration of Marlis McAllister, Esq.
Defendants did not file a reply to Plaintiff’s opposition.
III. Analysis.
The main arguments presented by Defendants in support of their motion to set aside the order for terminating sanctions can be summarized as follows: 1) Defendants have complied with the Court’s initial discovery order by serving responses to form and special interrogatories on 14 May 2014, two days prior to the date set for the hearing of the motion for terminating sanctions. Counsel for Defendants intended to attend the hearing for terminating sanctions and notify the Court of Defendants’ compliance, but failed to do so because he was accidentally locked out of the courtroom. By the time Defendants’ counsel was able to re-enter the courtroom, the case was already called and the tentative ruling was adopted. 2) Defendants were unable to timely respond to the discovery requests, because Giles was away for a period of months due to death and illness in the family. She was not available to assist counsel in preparing the discovery responses until her return to California around the middle of March 2014.
On the other hand, Plaintiff argues that Defendants should not be granted relief from the terminating sanctions for the following reasons: 1) Defendants’ motion is not timely, because it was not filed within six months of entry of the order for terminating sanctions. 2) Defendants continued to the present day to fail to comply with the Court’s initial discovery order. They have never either served responses to the requests for production of documents or produced the documents requested. 3) Defendants have engaged in a long-term pattern and practice of flaunting the Discovery Act and refusing to comply with the Court’s discovery order. As a result, they cannot demonstrate the mistake, inadvertence, surprise or neglect necessary to obtain the relief they seek.
The Court will first address the issue of whether Defendants’ motion is timely.
A. Legal Standard.
“A court may relieve a party from ‘a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.’ ([Code Civ., Proc.,] § 473, subd. (b).)[3] Relief from a default entered by the clerk or a resulting default judgment or dismissal is mandatory if a timely application for relief is accompanied by an attorney's affidavit of fault, unless the court finds that the default or dismissal was not caused by the attorney's mistake, inadvertence, surprise, or neglect. (Ibid.) Absent an appropriate attorney's affidavit of fault, relief is discretionary. (Ibid.)” (Arambula v. Union Carbide Corp. (2005) 128 Cal. App. 4th 333, 340.)
“An ‘[a]pplication" for discretionary relief must be made within a reasonable time, not exceeding six months, after the judgment, dismissal, order, or proceeding was taken. (§ 473, subd. (b).) [FN.] An “application” for mandatory relief must be made within six months after entry of judgment. (Ibid.) [….] The six-month limit is mandatory; a court has no authority to grant relief under section 473, subdivision (b), unless an application is made within the six-month period. [Citations.]” (Ibid.)
In other words, “[t]he six-month time limit for granting relief under [(§ 473, subd. (b)] is jurisdictional and relief cannot be granted under [(§ 473, subd. (b)] if the application for such relief is instituted more than six months after the entry of the judgment, order or proceeding from which relief is sought. [Citations.]” (Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 736, FN3.)
B. The Six-Month Limitation.