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1 Robins Kaplan LLP Daniel L. Allender (SBN 264651) 2 2121 Avenue of the Stars, Suite 2800 Los Angeles, CA 90067 3 Telephone: (310) 229-5414 4 Timothy Q. Purdon (pro hac vice) 1207 West Divide Avenue, Suite 200 5 Bismarck, ND 58503 Telephone: (701) 255-3000 6 Tara D. Sutton (pro hac vice) 7 800 LaSalle Avenue, Suite 2800 Minneapolis, MN 55402 8 Telephone: (612) 349-8500 9 Eric M. Lindenfeld (pro hac vice) 1325 Avenue of the Americas, Suite 2601 10 New York, NY 10019 Telephone: (212) 980-7400 11 Frazer PLC 12 T. Roe Frazer II (pro hac vice)ROBINS KAPLAN LLP 30 Burton Hills Boulevard., Suite 450 ATTORNEYS AT LAW LOS ANGELES 13 Nashville, TN 37215 Telephone: (503) 242-1072 14 Attorneys for Plaintiff 15 16 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES 17 (UNLIMITED JURISDICTION) 18 19 FOND DU LAC BAND OF LAKE Case No. SUPERIOR CHIPPEWA, 20 COMPLAINT FOR DAMAGES AND Plaintiff, DEMAND FOR JURY TRIAL 21 v. 22 META PLATFORMS, INC., META 23 PAYMENTS, INC., SICULUS, INC., FACEBOOK OPERATIONS, LLC, 24 FACEBOOK HOLDINGS, LLC, INSTAGRAM, LLC, SNAP INC., TIKTOK 25 INC., BYTEDANCE INC., GOOGLE LLC, ALPHABET INC., and YOUTUBE, LLC, 26 Defendants. 27 28 COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 1 TABLE OF CONTENTS 2 I. INTRODUCTION .................................................................................................................. 1 3 II. THE PARTIES ....................................................................................................................... 5 4 A. PLAINTIFF .................................................................................................................... 5 B. DEFENDANTS .............................................................................................................. 5 5 1. Meta ............................................................................................................................ 5 6 2. Snap ............................................................................................................................ 7 7 3. ByteDance .................................................................................................................. 7 4. Google ........................................................................................................................ 7 8 III. JURISDICTION AND VENUE ............................................................................................. 8 9 IV. FACTUAL ALLEGATIONS ................................................................................................. 9 10 A. DEFENDANTS’ APPS HAVE CREATED A YOUTH MENTAL HEALTH CRISIS. .......................................................................................................................... 9 11 B. DEFENDANTS TARGET CHILDREN AS A CORE MARKET, HOOKING KIDS ON THEIR ADDICTIVE SOCIAL MEDIA PLATFORMS. ........................... 16 12ROBINS KAPLAN LLP 1. Children are uniquely susceptible to Defendants’ addictive apps. ........................... 18 ATTORNEYS AT LAW LOS ANGELES 13 2. Defendants design their apps to attract and addict youth. ........................................ 21 14 3. Millions of kids use Defendants’ products compulsively. ....................................... 26 4. Defendants’ unreasonably dangerous products encourage risky “challenges.” ....... 28 15 5. Defendants’ unreasonably dangerous social media apps facilitate and contribute 16 to the sexual exploitation and sextortion of children, and the ongoing production and spread of child sex abuse material online. ...................................... 30 17 C. META MARKETS AND DESIGNS FACEBOOK AND INSTAGRAM TO ADDICT YOUNG USERS, SUBSTANTIALLY CONTRIBUTING TO THE 18 MENTAL HEALTH CRISIS. ...................................................................................... 33 19 1. Background and overview of Meta’s products. ........................................................ 33 a. Facebook’s acquisition and control of Instagram. ............................................... 34 20 2. Meta intentionally encourages youth to use its products and then leverages that 21 usage to increase revenue. ....................................................................................... 36 3. Meta intentionally designed product features to addict children and adolescents. .. 42 22 a. Facebook’s and Instagram’s algorithms maximize engagement, promoting 23 use at levels and frequency that is harmful to kids.............................................. 43 b. Facebook’s and Instagram’s user interfaces are designed to create addictive 24 engagement. ......................................................................................................... 47 25 c. Instagram’s unreasonably dangerous product features cause negative appearance comparison and social comparison................................................... 51 26 d. Meta has failed to implement effective age-verification measures to keep children off of Facebook and Instagram.............................................................. 55 27 e. Facebook’s and Instagram’s parental controls are unreasonably dangerous. ...... 58 28 i COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 1 f. Facebook’s and Instagram’s unreasonably dangerous features include impediments to discontinuing use. ...................................................................... 60 2 4. Meta has concealed from users, the public, and Congress the harmful effects that 3 Instagram’s and Facebook’s design have on children. ............................................ 61 5. Meta failed to adequately communicate the dangers and harms caused by 4 Instagram and Facebook, or provide instructions regarding safe use. ..................... 68 5 D. SNAP MARKETS AND DESIGNS SNAPCHAT TO ADDICT YOUNG USERS, SUBSTANTIALLY CONTRIBUTING TO THE MENTAL HEALTH CRISIS. ...... 70 6 1. Background and overview of Snapchat. ................................................................... 71 7 2. Snap targets children. ............................................................................................... 72 a. Snap has designed its Snapchat product to grow use by children to drive the 8 company’s revenue. ............................................................................................. 72 9 b. Snap promotes Snapchat to children. ................................................................... 74 3. Snapchat is designed to addict children through psychological manipulation. ........ 78 10 a. Snap designed Snapchat to drive compulsive use through a set of social 11 metrics and other manipulation techniques that induce compulsive use............. 78 b. Snap’s unreasonably dangerous features are designed to promote compulsive 12 and excessive use................................................................................................. 83ROBINS KAPLAN LLP ATTORNEYS AT LAW 4. Snap designed Snapchat with features that harm children directly or expose LOS ANGELES 13 children to harm. ...................................................................................................... 85 14 a. Disappearing “Snaps” and “My Eyes Only” encourage destructive behavior among Snap’s teen users. .................................................................................... 85 15 b. Snapchat’s “Snap Map” feature endangers children. ........................................... 87 16 c. Snapchat’s “Quick Add” feature endangers children........................................... 87 17 d. Snapchat’s Lenses and Filters features promote negative appearance comparison. ......................................................................................................... 88 18 5. Snap has implemented ineffective and misleading parental controls, further endangering children. .............................................................................................. 90 19 6. Snap facilitates the spread of CSAM and child exploitation. ................................... 90 20 7. Snap failed to adequately communicate the harms its product causes or provide instructions regarding safe use................................................................................. 94 21 E. BYTEDANCE MARKETS AND DESIGNS ITS TIKTOK TO ADDICT YOUNG 22 USERS, SUBSTANTIALLY CONTRIBUTING TO THE MENTAL HEALTH CRISIS. ........................................................................................................................ 95 23 1. Background and overview of TikTok....................................................................... 96 24 2. ByteDance intentionally encourages youth to use its product and then leverages that use to increase revenue. .................................................................................... 97 25 3. ByteDance intentionally designed product features to addict children and adolescents. .............................................................................................................. 98 26 a. TikTok’s age-verification measures are unreasonably dangerous. ...................... 98 27 b. TikTok’s parental controls are unreasonably dangerous. .................................... 99 28 c. ByteDance intentionally designed TikTok’s unreasonably dangerous features and algorithms to maximize engagement using automatic content, time- - ii - COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 1 limited experiences, intermittent variable rewards, reciprocity, and ephemeral content. .............................................................................................................. 100 2 d. ByteDance’s unreasonably dangerous features include impediments to 3 discontinuing use. .............................................................................................. 111 e. ByteDance’s unreasonably dangerous features inflict impossible image 4 standards and encourage negative appearance comparison............................... 113 5 4. ByteDance facilitates the spread of CSAM and child exploitation. ....................... 114 5. ByteDance failed to adequately communicate the harms its product causes or to 6 provide instructions regarding safe use. ................................................................ 117 7 F. GOOGLE MARKETS AND DESIGNS YOUTUBE TO ADDICT YOUNG USERS, SUBSTANTIALLY CONTRIBUTING TO THE MENTAL HEALTH 8 CRISIS. ...................................................................................................................... 120 1. Background and overview of YouTube. ................................................................ 121 9 2. Google intentionally encourages youth to use YouTube and then leverages that 10 use to increase revenue. ......................................................................................... 122 3. Google intentionally designed product features to addict children and 11 adolescents. ............................................................................................................ 126 12 a. Google’s age-verification measures and parental controls are unreasonablyROBINS KAPLAN LLP dangerous........................................................................................................... 126 ATTORNEYS AT LAW LOS ANGELES 13 b. YouTube is unreasonably and dangerously designed to inundate users with features that use intermittent variable rewards and reciprocity. ........................ 127 14 c. Google’s algorithms are designed to maximize “watch time.” .......................... 131 15 d. YouTube’s unreasonably dangerous features include impediments to discontinuing use. .............................................................................................. 139 16 4. Google facilitates the spread of CSAM and child exploitation. ............................. 140 17 5. Google failed to adequately communicate the harm its products cause or provide instructions regarding safe use............................................................................... 144 18 G. IMPACT OF THE DEFENDANT-CREATED MENTAL HEALTH CRISIS ON 19 PLAINTIFF FOND DU LAC BAND OF LAKE SUPERIOR CHIPPEWA. ........... 146 V. PLAINTIFF’S CLAIMS .................................................................................................... 148 20 VI. PRAYER FOR RELIEF ..................................................................................................... 159 21 VII. JURY DEMAND................................................................................................................ 159 22 23 24 25 26 27 28 - iii - COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 1 I. INTRODUCTION 2 1. A youth mental health crisis is devastating Indian Country. In a painful echo to centuries 3 of historical trauma—including forced adoption and compulsory boarding schools—suicide now 4 stands as the second leading cause of death for Native American adolescents. 1 According to the 5 Centers for Disease Control and Prevention, “American Indian/Alaska Native youth and young 6 adults have the highest suicide rates of any racial/ethnic group in the U.S.” 2 7 2. The statistics are staggering and tell a horrific story: tribal teen suicide rates are 3.5 to 4 8 times higher than the national average. 3 CDC data from 2011-2020 similarly identifies suicide 9 among younger tribal members as far exceeding the national average, with most significant 10 disparities among those aged 15-24. 4 11 12ROBINS KAPLAN LLP ATTORNEYS AT LAW LOS ANGELES 13 14 15 16 17 18 19 20 21 22 23 3. The statistics for females are even more shocking—according to CDC data, female tribal 24 teens commit suicide at a rate over five times higher than their white counterparts: 5 25 1 Center for Native American Youth, Aspen Institute, Teen Suicide Prevention. 26 2 American Psychiatry Association, Suicide Prevention: Native American Youth (Sept. 9, 2019). 3 Center for Native American Youth, Aspen Institute, Teen Suicide Prevention; C. Urbanski, As rates of suicide for 27 Native American youth increase, culture is key to prevention, Stanford The Clayman Institute for Gender Research (May 2023). 28 4 Suicide Prevention Resource Center, American Indians and Alaska Natives. 5 HHS.gov, Mental and Behavioral Health – American Indians/Alaska Natives (2020). 1 COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 1 2 3 4 5 6 7 8 9 10 4. In addition to suicides, tribal teens disproportionately suffer from mental illness. Tribal 11 youth (11-15) report nearly twice the level of depression and more anxiety than white youth. 6 12 Disordered eating may also be more prevalent among tribal teens than white teens. 7ROBINS KAPLAN LLP ATTORNEYS AT LAW LOS ANGELES 13 5. The mental health crisis among Minnesota tribes, including the Fond Du Lac Band, is 14 especially dire. A February 2024 joint report determined that “The suicide rate among Minnesota’s 15 Native Americans is noticeably higher compared to Native Americans nationwide.” 8 And, 16 according to the Minnesota Department of Health, from 2015-2019, suicide rates among tribal 17 adolescents (49.7) was over 4x higher than white Minnesota adolescents (11.7). 9 18 6. Soaring suicide and mental illness have devastated Tribal communities and have pushed 19 already chronically underfunded mental health programs to the breaking point. They have caused 20 widespread damage to the Band’s already vulnerable cultural preservation and fabric and placed 21 further burden on limited resources available for other societal concerns, such as education and job 22 creation. 23 24 6 Serafani et al., A Comparison Of Early Adolescent Behavioral Health Risks Among Urban American Indians/Alaska Natives and Their Peers, Am Indian Alsk Native Ment Health Res. 2017; 24(2): 1–17. 25 7 See, e.g., Mikhail, et al., A virtual issue highlighting eating disorders in people of Black/African and Indigenous heritage, J Eat Disord. (2021); Nagata, J.M., Smith-Russack, Z., Paul, A. et al. The social epidemiology of binge- 26 eating disorder and behaviors in early adolescents, J Eat Disord 11, 182 (2023); Striegel-Moore et al., Behavioral symptoms of eating disorders in Native Americans: Results from the add health survey wave III, International Journal 27 of Eating Disorders, 44(6), 561–566 (2011). 8 The Suicide Epidemic in Rural Minnesota: How we got here and how we move forward, Center for Rural Policy 28 and Development (February 2024). 9 MN Department of Health, Adolescent Suicide (2021). -2- COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 1 7. This lawsuit follows a growing body of scientific research, including Defendants’ own 2 (previously concealed) studies, drawing a direct line from Defendants’ proliferation of “social 3 media” products offered by the Defendants, including platforms such as Facebook, Instagram, 4 TikTok, and YouTube to the youth mental crisis, including among the Fond Du Lac Band. 5 8. Over the past decade, Defendants have relentlessly pursued a strategy of growth-at-all- 6 costs, recklessly ignoring the impact of their products on children’s mental and physical health and 7 well-being. In a race to corner the “valuable but untapped” market of tween and teen users, each 8 Defendant designed product features to promote repetitive, uncontrollable use by kids. 10 9 9. Recognizing the power of engaging young users, Defendants deliberately tweaked the 10 design and operation of their apps to exploit the psychology and neurophysiology of kids. Because 11 children’s and adolescents’ brains are not fully developed, they lack the same emotional maturity, 12 impulse controls, and psychological resiliency as adults. As a result, they are uniquely susceptibleROBINS KAPLAN LLP ATTORNEYS AT LAW LOS ANGELES 13 to addictive features in digital products and highly vulnerable to the consequent harms. Knowing 14 this, Defendants wrote code designed to manipulate dopamine release in children’s developing 15 brains and, in doing so, create compulsive use of their apps. 16 10. Defendants’ strategy paid off. Users of their products now number in the billions, and 17 the frequency and time spent by these users has grown exponentially. 18 11. Yet, Defendants’ growth has come at the expense of its most vulnerable users: children 19 and teens around the world who they cultivated and exploited. Children and teens are the direct 20 victims of the intentional product design choices made by each Defendant. They are the intended 21 targets of the harmful features that pushed them into self-destructive feedback loops. 22 12. Today, over a third of 13- to 17-year-old kids report using one of Defendants’ apps 23 “almost constantly” and admit this is “too much.” Yet more than half of these kids report that they 24 would struggle to cut back on their social media use. 25 13. Tribal youth are equally gripped. In 2020, 65.3% tribal youth (15-24) were on social 26 media 3-7 hours per day, “with 86.0% reporting their primary activity on social media as scrolling, 27 28 10 Georgia Wells & Jeff Horwitz, Facebook’s Effort to Attract Preteens Goes Beyond Instagram Kids, Documents Show, Wall St. J. (Sept. 28, 2021). -3- COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 1 followed by watching videos (75.1%).” 11 The same survey found that “the most popular daily 2 technology use among AI/AN youth involved browsing Instagram (74.0%), sending/receiving snap 3 messages via Snapchat (60.0%), using TikTok (50.4%), and watching videos on YouTube 4 (48.4%).” 12 5 14. It is clear that Instagram, Facebook, TikTok, Snapchat, and YouTube have rewired how 6 our kids think, feel, and behave. Disconnected “Likes” have replaced the intimacy of adolescent 7 friendships. Mindless scrolling has displaced the creativity of play and sport. While presented as 8 “social,” Defendants’ products have in myriad ways promoted disconnection, disassociation, and a 9 legion of resulting mental and physical harms. 10 15. The U.S. Surgeon General recently explained that children versus Big Tech is “just not 11 a fair fight.” 13 “You have some of the best designers and product developers in the world who have 12 designed these products to make sure people are maximizing the amount of time they spend onROBINS KAPLAN LLP ATTORNEYS AT LAW LOS ANGELES 13 these platforms. And if we tell a child, use the force of your willpower to control how much time 14 you’re spending, you’re pitting a child against the world’s greatest product designers.” 15 16. The Surgeon General’s comments have since been echoed by President Biden himself. 16 In a January 11, 2023, op-ed, President Biden recognized: “The risks Big Tech poses for ordinary 17 Americans are clear. Big Tech companies collect huge amounts of data on the things we buy, on 18 the websites we visit, on the places we go and, most troubling of all, on our children.” 14 19 17. The Fond Du Lac Band, like many other Native American tribes across the country, is 20 at a breaking point. Meanwhile, Defendants profit tremendously from their wrongful conduct. 21 Plaintiff brings this action—including in its parens patriae capacity to protect the health, safety, 22 and welfare of Tribal members—to remedy this wrong, hold Defendants accountable, and achieve 23 comprehensive, long-term planning and funding to drive sustained reduction in the mental health 24 crises its youth experience at the Defendants’ hands. 25 26 11 Reed et al., Findings from the 2020 Native Youth Health Tech Survey Am Indian Alsk Native, Ment Health Res. (2022). 27 12 Id. 13 Allison Gordon & Pamela Brown, Surgeon General says 13 is ‘too early’ to join social media, CNN (Jan. 29, 28 2023). Exhibits and referenced materials are incorporated in this Master Complaint as if fully stated herein. 14 Joe Biden, Republicans and Democrats, Unite Against Big Tech Abuses, Wall St. J. (Jan. 11, 2023). -4- COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 1 II. THE PARTIES 2 A. PLAINTIFF 3 18. Plaintiff Fond du Lac Band of Lake Superior Chippewa (“Fond du Lac Band” or “the 4 Band”) is a sovereign Indian Tribe that retains its aboriginal rights of self-governance and self- 5 determination, pursuant to the Treaty of LaPointe of September 30, 1854, the Indian Reorganization 6 Act of 1934, the common law of the United States, and as recognized by the United Nations 7 Declaration on the Rights of Indigenous Peoples of September 17, 2007. The Band currently 8 occupies the Fond du Lac Reservation in Northern Minnesota, in Carlton and St. Louis Counties. 9 Ancestors of the Band, the Ojibwe, have resided in the geographic area since approximately 800 10 A.D. The Fond du Lac Band exercises inherent governmental authority within the Fond du Lac 11 Reservation and on behalf of the health and welfare of the Fond du Lac Band and its members, 12 children, and grandchildren. Members of the Fond du Lac Band affected by the actions and conductROBINS KAPLAN LLP ATTORNEYS AT LAW of the Defendants alleged herein primarily live on the Fond du Lac Reservation. The Band exercises LOS ANGELES 13 14 inherent sovereign governmental authority within the Band’s Indian Lands and on behalf of the 15 health and welfare of the Band and its members (“Band Members”), their descendants, children, 16 and grandchildren. 17 19. This action is brought by the Band in the exercise of its authority as a sovereign 18 government and on behalf of the Band in its proprietary capacity and under its parens patriae 19 authority in the public interest to protect the health, safety, and welfare of all Fond du Lac Band 20 Members as well as the non-Band Member inhabitants of its Indian Lands. B. DEFENDANTS 21 22 20. The defendants identified in this section are collectively referred to as “Defendants” 23 throughout this Complaint. 1. Meta 24 25 21. Defendant Meta Platforms, Inc. (“Meta Platforms”) is a Delaware corporation and 26 multinational technology conglomerate. Its principal place of business is in Menlo Park, California. 27 22. Meta Platforms’ subsidiaries include, but may not be limited to, the entities identified in 28 this section, as well as a dozen others whose identity or involvement is presently unclear. -5- COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 1 23. Defendant Meta Payments, Inc. (“Meta Payments”) is a wholly owned subsidiary of 2 Meta Platforms that was incorporated in Florida on December 10, 2010, as Facebook Payments 3 Inc. In July 2022, the entity’s name was amended to Meta Payments Inc. Meta Payments is a wholly 4 owned subsidiary of Meta Platforms. Meta Payments manages, secures, and processes payments 5 made through Meta entities, among other activities, and its principal place of business is in Menlo 6 Park, California. 7 24. Defendant Siculus, Inc. (“Siculus”) is a wholly owned subsidiary of Meta Platforms that 8 was incorporated in Delaware on October 19, 2011. Siculus constructs data facilities to support 9 Meta Platforms’ products. Its principal place of business is in Menlo Park, California. 10 25. Defendant Facebook Operations, LLC (“Facebook Operations”) is a wholly owned 11 subsidiary of Meta Platforms that was incorporated in Delaware on January 8, 2012. Facebook 12 Operations is likely a managing entity for Meta Platforms’ other subsidiaries. Meta Platforms is theROBINS KAPLAN LLP ATTORNEYS AT LAW LOS ANGELES 13 sole member of this LLC, whose principal place of business is in Menlo Park, California. 14 26. Defendant Facebook Holdings, LLC (“Facebook Holdings”) was organized under the 15 laws of the state of Delaware on March 11, 2020, and is a wholly owned subsidiary of Meta 16 Platforms. Facebook Holdings is primarily a holding company for entities involved in Meta’s 17 supporting and international endeavors, and its principal place of business is in Menlo Park, 18 California. Defendant Meta Platforms is the sole member of Facebook Holdings. 19 27. Defendant Instagram, LLC (“Instagram, LLC”) launched an app called Instagram in 20 October 2010. On or around April 7, 2012, Meta Platforms purchased Instagram, LLC for over one 21 billion dollars and reincorporated the company in Delaware. Meta Platforms is the sole member of 22 this LLC, whose principal place of business is in Menlo Park, California. 23 28. Defendants Meta Platforms, Meta Payments, Siculus, Facebook Operations, Facebook 24 Holdings, and Instagram are referred to jointly as “Meta.” 25 29. Meta owns, operates, controls, produces, designs, maintains, manages, develops, tests, 26 labels, markets, advertises, promotes, supplies, and distributes digital products available through 27 mobile- and web-based applications (“apps”), including Instagram and Facebook (together, “Meta 28
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On May 28, 2024, Defendants filed a motion for terminating sanctions. No opposition has been filed. The hearing was originally scheduled for July 2, 2024, and was continued by the Court to August 2. Legal Standard Motion to Compel Deposition Any party may obtain discovery & by taking in California the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.) Code of Civil Procedure sections 2025.210 through 2025.280 provide the requirements for (among other things) what must be included in a deposition notice, when and where depositions may be taken, and how and when the notice must be served. The service of a deposition notice & is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying. (Id., § 2025.280, subd. (a).) Section 2025.410, subdivision (a), requires any party to serve a written objection at least three days before the deposition if the party contends that a deposition notice does not comply with the provisions of sections 2025.210 through 2025.280. Section 2025.450, subdivision (a), provides: If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for¿inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponents attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. Any such motion to compel must show good cause for the production of documents and, when a deponent has failed to appear, the motion must be accompanied by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance. (Id., subd. (b).) When a motion to compel is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. (Id., § 2025.450, subd. (g)(1).) In Chapter 7 of the Civil Discovery Act, section 2023.010, subdivision (d), defines [m]isuses of the discovery process to include [f]ailing to respond to or to submit to an authorized method of discovery. Where a party or attorney has engaged in misuse of the discovery process, the court may impose a monetary sanction in the amount of the reasonable expenses, including attorneys fees, incurred by anyone as a result of that conduct. (Id., § 2023.030, subd. (a).) Motion for Terminating Sanctions When a plaintiff fails to obey an order compelling answers to interrogatories, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to, that sanction, the court may impose a monetary sanction under Chapter 7. (Code Civ. Proc., § 2030.290, subd. (c).) When a plaintiff fails to obey an order compelling responses to requests for production, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to, that sanction, the court may impose a monetary sanction under Chapter 7. (Code Civ. Proc., § 2031.300, subd. (c).) In Chapter 7 of the Civil Discovery Act, section 2023.030 provides for monetary, evidence, issue, and terminating sanctions for any misuse of the discovery process, [t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title. A misuse of the discovery process is defined to include (among other things) failing to respond or to submit to an authorized method of discovery; making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to a discovery request; disobeying a court order to provide discovery; and making or opposing, unsuccessfully, a motion to compel without substantial justification. (Code Civ. Proc., § 2023.010, subds. (d)-(h).) The Civil Discovery Act provides for an escalating and incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.) Discovery sanctions should be appropriate to and commensurate with the misconduct, and they should not exceed that which is required to protect the interests of the party entitled to but denied discovery. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) If a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse. (Ibid.; see also, e.g., Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.) Terminating sanctions should be used sparingly. (Doppes, supra, 174 Cal.App.4th at p. 992; R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal. App. 4th 486, 496.) Although in extreme cases a court has the authority to order a terminating sanction as a first measure, a terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective. (Lopez, supra, 246 Cal.App.4th at p. 604.) But where discovery violations are willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction. (Doppes, supra, 174 Cal.App.4th at p. 992.) Repeated and willful violations of discovery orders that prejudice the opposing party may warrant a terminating sanction. (Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 702; Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390; Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327; Lang v. Hachman (2000) 77 Cal.App.4th 1225, 1246; Collisson X Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617-1622.) The primary purpose of discovery sanctions is to obtain compliance with the Civil Discovery Act and the Courts orders. It is not to punish. (Newland v. Super. Ct. (1995) 40 Cal.App.4th 608, 613; Ghanooni v. Super Shuttle of Los Angeles (1993) 20 Cal.App.4th 256, 262.) A discovery sanction should not create a windfall for a party or place a party in a better position than it would have been if the opposing party had simply complied with its obligations under the Courts orders and the Civil Discovery Act. (Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1194; see also 2 Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023), ¶¶ 8:2214-2220.) A terminating sanction issued solely because of a failure to pay a monetary discovery sanction is never justified. (Newland, supra, 40 Cal.App.4th at p. 615.) Discussion Motion to Compel Deposition On February 9, 2024, Defendants served Plaintiffs then-counsel with a notice of Plaintiffs deposition, scheduled for March 14, 2024. (Barresi Decl., ¶¶ 4, 6.) Plaintiff did not object and did not appear. The Court finds Plaintiff was properly served with notice of the deposition and failed to appear. There is no evidence, however, that after the nonappearance, Defendants contacted the deponent to inquire about the nonappearance. This is required by statute to obtain an order compelling a party to appear for deposition. (Code Civ. Proc., § 2025.450(b).) Therefore, the Court must deny Defendants motion to compel Plaintiffs deposition. Motion for Terminating Sanctions Defendants seek terminating sanctions for Plaintiffs failure to provide responses to written discovery and follow the Courts order compelling responses. For terminating sanctions, a party must present evidence of repeated and willful misuse of the discovery process, as well as evidence that less severe sanctions have not (or likely will not) lead to compliance with the discovery rules. Defendants have not, on this record at this time, made such a showing. There has not been a showing of a history or pattern of willful abuse or repeated violations that have not been (or cannot be) cured by lesser sanctions. Moreover, a discovery sanction should not create a windfall for a party or place a party in a better position than it would have been if the opposing party had simply complied with its obligations under the Courts orders and the Civil Discovery Act. (Rutledge, supra, 238 Cal.App.4th at p. 1194.) Here, at this time, a terminating sanction would create such a windfall for Defendants as no lesser sanctions have been pursued. Defendants do not request lesser sanctions in this motion. Accordingly, the Defendants motion for terminating sanctions is DENIED. The denial as to terminating sanctions is without prejudice to Defendants seeking other sanctions or seeking a terminating sanction at a later stage of the proceedings, based on a further showing of misuse of the discovery process. Conclusion The Court DENIES Defendants motions to compel Plaintiff to appear for deposition. The Court DENIES Defendants motion for terminating sanctions. Moving Party is ordered to give notice.
Ruling
MICHELLE SOTO VS JOSEPH SHIRIAN, ET AL.
Jul 29, 2024 |Renee C. Reyna |22STCV29998
Case Number: 22STCV29998 Hearing Date: July 29, 2024 Dept: 29 Motion to Compel Shirian to Respond to Form Interrogatories Motion to Compel Shirian to Respond to Special Interrogatories Motion to Compel Shirian to Respond to Requests for Production of Documents Tentative The motions are granted. Background Two consolidated cases arise out of an automobile accident occurring on December 30, 2021, at or near the intersection of Saticoy Street and Canoga Avenue in Los Angeles. In the first filed and lead case (Case No. 22STCV29998), Michelle Soto (Soto) filed a complaint on September 14, 2022, against Joseph Shirian (Shirian), Blas Alducin Dominguez (Dominguez), and Does 1 through 50 for motor vehicle negligence and general negligence. On September 29, 2022, Dominguez filed an answer and cross-complaint against Shirian and Roes 1 through 10. On December 14, 2022, Shirian filed an answer to Sotos complaint, and a cross-complaint against Michelle Soto, Dominguez, Mariana Diazzamora, and Roes 1 through 25 In the second filed case (Case No. 22VECV02403), Shirian filed a complaint on December 14, 2022, against Soto, Dominguez, Mariana Diazzamora, and Does 1 through 50 for motor vehicle negligence and general negligence. On November 9, 2023, Dominguez and Mariana Diaz Zamora (erroneously sued as Mariana Diazzamora) filed an answer to Shirians complaint. The cases were related on July 28, 2023, and consolidated on May 7, 2024. As it relates to the matters before the Court and set for hearing on July 29, 2024, Dominguez served Shirian with Form Interrogatories (Set One) on December 6, 2023, and on the same day Dominguez and Diazzamora served Shirian with Special Interrogatories (Set One) and Requests for Production (Set One). (Goodwin Decls., ¶ 2 & Exhs. A.) Notwithstanding a three-month extension of time, Shirian never responded to the discovery. (Id., ¶¶ 3-4.) On May 24, 2024, Dominguez filed these three motion to compel Shirian to respond to the discovery requests. No opposition has been filed. On June 24, the motions came on for hearing, and based on the parties oral agreement the Court continued the hearing to July 29, 2024. (June 24, 2024 Minute Order.) Nothing has been filed since June 24. Legal Standard A party must respond to interrogatories within 30 days after service. (Code Civ. Proc., § 2030.260, subd.(a).) If a party to whom interrogatories are directed does not provide a timely response, the propounding party may move for an order compelling response to the interrogatories. (Id., § 2030.290, subd. (b).) There is no time limit for a motion to compel initial responses, and no meet and confer efforts are required. (See id., § 2030.290; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411.) Nor must a separate statement be filed. (Cal. Rules of Court, rule 3.1345(b)(1).) In addition, a party who fails to provide a timely response generally waives all objections. (Code Civ. Proc., § 2030.290, subd. (a).) When a party moves to compel initial responses to interrogatories, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes [the motion], unless it finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2030.290, subd. (c).) A party must respond to requests for production of documents within 30 days after service. (Code Civ. Proc., § 2031.260, subd.(a).) If a party to whom requests for production of documents are directed does not provide timely responses, the requesting party may move for an order compelling response to the demand. (Id., § 2031.300, subd. (b).) There is no time limit for a motion to compel initial responses, and no meet and confer efforts are required. (See id., § 2031.300; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411.) Nor must a separate statement be filed. (Cal. Rules of Court, rule 3.1345(b)(1).) In addition, a party who fails to provide a timely response generally waives all objections. (Code Civ. Proc., § 2031.300, subd. (a).) When a party moves to compel initial responses to requests for production, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes [the motion], unless it finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2031.300, subd. (c).) Requests for admission may be propounded on a party without leave of court 10 days after the service of the summons on, or appearance by that party, whichever occurs first. (Code Civ. Proc., § 2033.020(b).) In Chapter 7 of the Civil Discovery Act, Code of Civil Procedure section 2023.010, subdivision (d), defines [m]isuses of the discovery process to include [f]ailing to respond to or to submit to an authorized method of discovery. Where a party or attorney has engaged in misuse of the discovery process, the court may impose a monetary sanction in the amount of the reasonable expenses, including attorneys fees, incurred by anyone as a result of that conduct. (Code Civ. Proc., § 2023.020, subd. (a).) Discussion Dominguez served Shirian with Form Interrogatories, Special Interrogatories, and Request for Production on December 6, 2023. (Goodwin Decls., ¶ 2 & Exhs. A.) No responses have been received. (Id., ¶ 3, 4.) Dominguez need not show anything more. The motions to compel are GRANTED. Dominguez does not request sanctions. Conclusion The Court GRANTS the motions to compel. The Court ORDERS Shirian to serve verified, written, code compliant responses, without objection, to Dominguezs Form Interrogatories (Set One) within 15 days of notice. The Court ORDERS Shirian to serve verified, written, code compliant responses, without objection, to Dominguezs Special Interrogatories (Set One) within 15 days of notice. The Court ORDERS Shirian to serve verified, written, code compliant responses, without objection, to Dominguezs Request for Production of Documents (Set One) within 15 days of notice. Moving party is ORDERED to give notice.
Ruling
AKOP TOROSIAN ET AL VS ARUTYUN FITILCHYAN ET AL
Aug 02, 2024 |BC617479
Case Number: BC617479 Hearing Date: August 2, 2024 Dept: P [TENTATIVE] ORDER DENYING MOTION TO TAX COSTS I. INTRODUCTION This action was filed on April 18, 2016, and arises from a dispute that resulted in the shooting of several people. Plaintiffs Akop Torosian aka Jack Torosian, Robert Torosian, Marina Fermanyan and Elda Madatyan filed a complaint against Defendants Arutyun Fitilchyan, Hrachya Gasparyan, Armen Tashjian, Armen Jermakyan, and Ashon Mkitaryan. The complaint alleges eight causes of action for: 1) assault and battery, 2) conspiracy to commit assault and battery, 3) negligence, 4) loss of consortium, 5) abuse of process, 6) extortion and blackmail, 7) conspiracy to commit extortion and blackmail, and 8) intentional infliction of emotional distress. On February 8, 2024, the Court granted Defendants Fitilchyan and Gasparyans motion for terminating sanctions as to Plaintiffs Akop and Roberts complaint for failure to obey multiple court orders to respond to discovery. On March 11, 2024, Defendants Fitilchyan and Gasparyan filed their verified memorandum of costs in the amount of $2,420. On April 8, 2024, Robert filed a motion to tax costs. On July 24, 2024, Defendants Fitilchyan and Gasparyan filed an opposition. No reply has been filed. The motion to tax costs is denied as Plaintiffs motion is untimely and because he failed to meet his burden to present evidence and prove that the claimed costs are not recoverable. II. LEGAL STANDARD A prevailing party is entitled to recover costs, as a matter of right, in any action or proceeding absent a statute expressly noting otherwise. (Cal Civ. Proc. Code § 1032, subd. (b).) Unless a statute provides otherwise, a court has no discretion to deny costs to a prevailing party. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129). A prevailing party is (i) a party that receives a net monetary recovery, (ii) a defendant who obtains a dismissal in its favor (iii) a defendant, when neither the plaintiff nor defendant attained any relief and (iv) a defendant, where the plaintiff(s) obtains no recovery from the defendant. (Cal Civ. Proc. Code § 1032, subd. (a)(4).) If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. (Ladas v. California State Auto. Assn. (1993) 19 Cal. App. 4th 761, 774.) If the items appear to be proper expenses, they are themselves prima facie evidence that the costs, expenses and services were necessarily incurred. If the items appear proper, it is not enough for the losing party to attack submitted costs by arguing that he thinks the costs were not necessary or reasonable. Rather, the losing party has the burden to present evidence and prove that the claimed costs are not recoverable. (Seever v. Copley Press Inc. (2006) 141 Cal.App.4th 1550, 1557.) However, when items claimed as costs do not appear on their face as proper and necessary, and the items are properly challenged by a motion to tax costs, the burden of establishing the necessity of the items is on the party claiming them as costs. (See Id.; See also Whitney v. Whitney (1958) 164 Cal.App.2d 577, 585.) [I]f the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. (Ladas, 19 Cal.App.4th at 774.) III. DISCUSSION Plaintiff moves to tax costs. Defendants are the prevailing parties as their motion for terminating sanctions was granted. Plaintiff argues that the costs set forth in the memorandum of costs are excessive, unnecessary, and unrecoverable. Specifically, Plaintiff objects to the initial filing fees of $435 for each defendant. Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail or email, the period is extended as provided in Code of Civil Procedure section 1013.¿ (Cal. Rules of Court, rule 3.1700(b)(1).) Here, Defendants served the memorandum of costs by electronic service on March 11, 2024. (Memorandum of Costs POS.) Thus, this motion would have had to be filed 15 days plus two court days from March 11, 2024, which would be March 28, 2024. This motion was filed and served on April 8, 2024, making it untimely. In any event, as Defendants filed a verified memorandum of costs, the burden of showing that the costs sought were not reasonable or necessary is on Plaintiff. Plaintiff only makes conclusory assertions and offers no declarations or other evidence in support of his assertions. Plaintiffs failure to provide a declaration offers the Court no evidence from which to consider Plaintiffs claims. As discussed above, Plaintiff has the burden of proof to show that the item of cost was not reasonably necessary for the conduct of the litigation; mere conclusory assertions are insufficient to rebut the prima facie showing costs are proper. (See Jones v. Dumrichob (1998) 63 Cal.App.4th 1261, 1266; County of Kern v. Ginn (1983) 146 Cal.App.3d 1107, 1113-14.) In sum, the court finds that Plaintiff fails to meet his burden of proof. IV. CONCLUSION AND ORDER The motion to tax costs is denied. Defendants are to give notice of this ruling. Dated: August 2, 2024 JARED D. MOSES JUDGE OF THE SUPERIOR COURT
Ruling
SERAN NG, D.M.D, INC., A CALIFORNIA CORPORATION VS YANG LU
Aug 02, 2024 |20STCV49246
Case Number: 20STCV49246 Hearing Date: August 2, 2024 Dept: 53 Superior Court of California County of Los Angeles Central District Department 53 seran ng, d.m.d., inc. ; Plaintiff, vs. yang lu , et al.; Defendants. Case No.: 20STCV49246 Hearing Date: August 2, 2024 Time: 10:00 a.m. [tentative] Order RE: plaintiffs motion to compel further responses to special interrogatories, set twelve, and for monetary sanctions MOVING PARTY: Plaintiff Seran Ng, D.M.D., Inc. RESPONDING PARTY: Defendant Yang Lu Motion to Compel Further Responses to Special Interrogatories, Set Twelve, and for Monetary Sanctions[1] The court considered the moving, opposition, and reply papers filed in connection with this motion. EVIDENTIARY OBJECTIONS The court rules on plaintiff Seran Ng, D.M.D., Inc.s evidentiary objections, filed on May 24, 2024, as follows: Objections Nos. 1-4, 8-9, 11-12, 15, and 17 are overruled. Objections Nos. 5-7, 10, 13-14, 16, and 18 are sustained. DISCUSSION Plaintiff Seran Ng, D.M.D., Inc. (Plaintiff) moves the court for an order (1) compelling defendant Yang Lu (Defendant) to serve further responses to Plaintiffs Special Interrogatories, Set Twelve, numbers 143-153, and (2) awarding sanctions in favor of Plaintiff and against Defendant in the amount of $5,346.65. The court grants Plaintiffs motion to compel Defendants further responses to Special Interrogatories, Set Twelve, numbers 143-153 because the objections to those interrogatories are without merit. (Code Civ. Proc., § 2030.300, subd. (a)(3).) The court notes that Defendant has objected to these interrogatories on the ground that they exceed the limit of 35 specially prepared interrogatories. (Code Civ. Proc., § 2030.030, subd. (a)(1).) But (1) Plaintiff also served on Defendant a declaration that substantially complies with Code of Civil Procedure section 2030.050, and (2) the court denied Defendants motion for a protective order on June 28, 2024. (Chan Decl., Ex. A, p. 6; June 28, 2024 Order, p. 5:2.) The court grants Plaintiffs request for monetary sanctions against Defendant. (Code Civ. Proc., § 2030.300, subd. (d).) The court finds that $2,186.65 ((5 hours x counsels $425 hourly rate) + $61.65 motion filing fee) is a reasonable amount of monetary sanctions to impose against Defendant in connection with this motion. (Chan Decl., ¶¶ 25-27). The court denies Defendants request for monetary sanctions against Plaintiff. (Code Civ. Proc., § 2030.300, subd. (d).) ORDER The court grants plaintiff Seran Ng, D.M.D., Inc.s motion to compel further responses to special interrogatories and for monetary sanctions. Pursuant to Code of Civil Procedure section 2030.300, the court orders defendant Yang Lu to serve further, full and complete answers to plaintiff Seran Ng, D.M.D., Inc.s Special Interrogatories, Set Twelve, numbers 143-153, which comply with Code of Civil Procedure sections 2030.210-2030.250, within 20 days of the date of service of this order. The court orders defendant Yang Lu to pay monetary sanctions to plaintiff Seran Ng, D.M.D., Inc. in the amount of $2,186.65 within 30 days of the date of service of this order. The court orders plaintiff Seran Ng, D.M.D., Inc. to give notice of this ruling. IT IS SO ORDERED. DATED: August 2, 2024 _____________________________ Robert B. Broadbelt III Judge of the Superior Court [1] On June 3, 2024, the court issued an order continuing the hearing on this motion to August 2, 2024, so that it could be heard after the court ruled on the motion for protective order filed by defendant Yang Lu. (June 3, 2024 Order, p. 2:4-8.) On June 28, 2024, the court issued an order denying defendant Yang Lus motion for protective order. (June 28, 2024 Order, p. 5:2.)
Ruling
Jul 29, 2024 |22STCV30388
Case Number: 22STCV30388 Hearing Date: July 29, 2024 Dept: 32 PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that partys intention to submit. The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. TENTATIVE RULING DEPT: 32 HEARING DATE: July 29, 2024 CASE NUMBER: 22STCV30388 MOTIONS: (1) Motion to be Relieved as Counsel for Destin Rogers (2) Motion to be Relieved as Counsel for Brittni Aprea MOVING PARTY: Plaintiffs Counsel OPPOSING PARTY: None BACKGROUND Plaintiffs Destin Rogers and Brittni Aprea (Plaintiffs) counsel of record, Dordulian Law Group (Counsel), moves to be relieved as counsel for Plaintiffs. No opposition has been filed for this motion. LEGAL STANDARD To be granted relief as counsel, counsel must comply with California Rules of Court (CRC) 3.1362. Even where grounds for termination exist, attorneys seeking to withdraw must comply with the procedures set forth in California Rule of Professional Conduct (CRPC) 3.700 and are subject to discipline for failure to do so. CRPC 3.700(B) lists various grounds for mandatory withdrawal. An attorney's right to terminate the attorney-client relationship and withdraw from a case is not absolute. (See Vann v. Shilleh (1975) 54 Cal.App.3d 192, 197; People v. Prince (1968) 268 Cal.App.2d 398.) The decision whether to grant or deny an application for withdrawal is within the court's discretion, and it does not abuse that discretion by denying the application on the ground that the attorney's withdrawal would work injustice upon a third party. (Hodcarriers, Bldg. and Common Laborers Local Union No. 89 v. Miller (1966) 243 Cal.App.2d 391.) The rules have been liberally construed to protect clients. (Vann v. Shilleh, supra, 54 Cal.App.3d 192.) An attorney, either with client's consent or court's approval, may withdraw from a case when withdrawal can be accomplished without undue prejudice to client's interests; however, an attorney shall not withdraw from employment until the member has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel, complying with rule 3-700(D), and complying with applicable laws and rules. (CRPC 3.700(A)(2).) A lawyer violates his or her ethical mandate by abandoning a client (Pineda v. State Bar (1989) 49 Cal.3d 753, 758 759), or by withdrawing at a critical point and thereby prejudicing the clients case. (CRPC 3.700(A)(2); Vann v. Shilleh, supra.) DISCUSSION Counsel has filed forms MC-051 and MC-052 and has lodged with the Court a copy of the proposed order on form MC-053 as required. (Cal Rules of Court, rule 3.1362.) The Court finds a valid basis for withdrawal. Accordingly, the Court GRANTS the motions to relieve counsel. Counsel shall provide notice of the Courts ruling and file proofs of service of such.
Ruling
OLIVIA MIZRAHI, ET AL. VS SAMUEL KARCHMER, ET AL.
Aug 02, 2024 |Renee C. Reyna |21STCV25441
Case Number: 21STCV25441 Hearing Date: August 2, 2024 Dept: 29 Motion to Compel Deposition of Plaintiff Olivia Mizrahi Motion to Compel Deposition of Plaintiff Golda Mizrahi Motion to Compel Deposition of Plaintiff Yaron Mizrahi Motion to Continue Trial Tentative The three motions to compel are denied without prejudice. The motion to continue trial is denied without prejudice. Background On July 9, 2021, Plaintiffs Olivia Mizrahi, Golda Mizrahi, Yaron Mizrahi, Lian Beysson, and Shayla Beysson filed a complaint against Defendants Samuel Karchmer, Donald Karchmer (collectively, Defendants), and Does 1 through 50, asserting causes of action for motor vehicle negligence and general negligence arising out of an accident on July 9, 2019, at or near the intersection of Beverly Drive and South Santa Monica Boulevard. Defendants filed their answer on April 26, 2022. On July 1, 2024, Defendants filed these four motions: motions to compel the depositions of Olivia Mizrahi, Golda Mizrahi, Yaron Mizrahi, and a motion to continue trial. No opposition has been filed. Legal Standard Motion to Compel Deposition Any party may obtain discovery & by taking in California the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.) Code of Civil Procedure sections 2025.210 through 2025.280 provide the requirements for (among other things) what must be included in a deposition notice, when and where depositions may be taken, and how and when the notice must be served. The service of a deposition notice & is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying. (Id., § 2025.280, subd. (a).) Section 2025.410, subdivision (a), requires any party to serve a written objection at least three days before the deposition if the party contends that a deposition notice does not comply with the provisions of sections 2025.210 through 2025.280. Section 2025.450, subdivision (a), provides: If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for¿inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponents attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. Any such motion to compel must show good cause for the production of documents and, when a deponent has failed to appear, the motion must be accompanied by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance. (Id., subd. (b).) When a motion to compel is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. (Id., § 2025.450, subd. (g)(1).) In Chapter 7 of the Civil Discovery Act, section 2023.010, subdivision (d), defines [m]isuses of the discovery process to include [f]ailing to respond to or to submit to an authorized method of discovery. Where a party or attorney has engaged in misuse of the discovery process, the court may impose a monetary sanction in the amount of the reasonable expenses, including attorneys fees, incurred by anyone as a result of that conduct. (Id., § 2023.030, subd. (a).) Motion to Continue Trial Code of Civil Procedure section 128, subdivision (a)(8), provides that the court has the power to amend and control its process and orders so as to make them conform to law and justice. The power to determine when a continuance should be granted is within the discretion of the trial court. (Color-Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599, 1603.) A trial court has wide latitude in the matter of calendar control including the granting or denying of continuances. (Park Motors, Inc. v. Cozens (1975) 49 Cal.App.3d 12, 18.) To ensure the prompt disposition of civil cases, the dates assigned for trial are firm. All parties and their counsel must regard the date set for trial as certain. (Cal. Rules of Court, rule 3.1332(a).) Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. (Cal. Rules of Court, rule 3.1332(c).) The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. (Ibid.) Circ*mstances that may support a finding of good cause include: (1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circ*mstances; (2) The unavailability of a party because of death, illness, or other excusable circ*mstances; (3) The unavailability of trial counsel because of death, illness, or other excusable circ*mstances; (4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice; (5) The addition of a new party if: (A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or (B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case; (6) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or (7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial. (Cal. Rules of Court, rule 3.1332(c).) In ruling on a motion or application for continuance, the court must consider all the facts and circ*mstances that are relevant to the determination. (Cal. Rules of Court, rule 3.1332(d).) California Rules of Court, rule 3.1332(d) sets forth a non-exhaustive list of factors that the court may consider: (1) The proximity of the trial date; (2) Whether there was any previous continuance, extension of time, or delay of trial due to any party; (3) The length of the continuance requested; (4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance; (5) The prejudice that parties or witnesses will suffer as a result of the continuance; (6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; (7) The court's calendar and the impact of granting a continuance on other pending trials; (8) Whether trial counsel is engaged in another trial; (9) Whether all parties have stipulated to a continuance; (10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and (11) Any other fact or circ*mstance relevant to the fair determination of the motion or application. (Cal. Rules of Court, rule 3.1332(d).) Discussion Motions to Compel Depositions On April 21, 2022, Defendants noticed the depositions of Yaron Mizrahi for August 23, 2022; Golda Mizrahi for August 25; and Olivia Mizrahi for August 31. (Farazian Decls., ¶ 3.) Objections to these depositions were served on August 18, 2022. (Id., ¶ 4.) On February 12, 2024, Defendants noticed the depositions of Olivia and Golda Mizrahi for April 3, 2024, and Yaron Mizrahi for April 4. (Id., ¶ 8.) Plaintiffs counsel advised Defendants that the deponents were not available on those dates. (Id., ¶ 9.) On June 7, 2024, Defendants noticed the depositions of Olivia and Golda Mizrahi for June 19, 2024, and Yaron Mizrahi for June 20. (Id., ¶ 10.) The three deponents did not object and did not appear. (Id., ¶¶ 10, 12.) Defendants have shown that they noticed the depositions and the three deponents did not object or appear. But Defendants have not shown that after the nonappearance, they contacted the deponent to inquire about the nonappearance. (Code Civ. Proc., 2025.450, subd. (b).) That required in a motion to compel, and it is missing here. Accordingly, the three motions to compel are denied without prejudice. Motion to Continue Defendants motion to continue to trial is premised upon the success of their motions to compel: Defendants argue that once their motions are granted, they will need sufficient time to take the depositions and then conduct any necessary follow-up discovery. As set forth above, however, the motions to compel are denied without prejudice. Accordingly, the motion to continue trial is also denied without prejudice. On this record, and in the absence of orders granting their motions to compel, there is not a basis for the Court to find good cause for a continuance. The case has been at issue for more than two years, and it is unclear why discovery was not completed (with the assistance of the Court if necessary) long ago. Accordingly, Defendants motion to continue trial is denied without prejudice. Conclusion The Court DENIES WITHOUT PREJUDICE the Motions to Compel Plaintiffs Olivia Mizrahi, Golda Mizrahi, and Yaron Mizrahi to Appear for Deposition. The Court DENIES WITHOUT PREJUDICE Defendants Motion to Continue Trial. Moving party is ORDERED to give notice.
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