Michelle Henry-Ellis v. Wyndham Vacation Ownership, Inc, et al

informal settlement discussions or other alternative dispute resolution proceedings. Should any party desire an evidentiary hearing, the parties shall be prepared to provide the Court with an estimate for the length of the hearing, and to set the hearing on the Court’s calendar. Counsel are directed to meet and confer on the foregoing issues prior to the hearing.

CIVIL LAW & MOTION CALENDAR – Hon. Joseph J. Solga, Dept. B (Historic Courthouse) at 8:30 a.m.

Gary Loebner, as Trustee of the Russell B. Peck Revocable Trust 21CV000055 dated as of October 15, 2004 vs Thomas O'Connor, as an individual and as Trustee of the Carolyn O'Connor Credit Shelter Trust et al

MOTION TO BE RELIEVED AS COUNSEL

TENTATIVE RULING: The Motion is GRANTED.

The moving party failed to include in the notice of this motion proper notice of the Court’s tentative ruling system as required by Local Rule 2.9. Moving party is directed to immediately provide, by telephone call AND email, the missing notice to opposing party/ies forthwith. The requirements for requesting oral argument under Local Rule 2.9 remain in effect. However, the Court may grant belated requests for oral argument or continuance of hearing, made by any party who represents it did not timely receive the required notice, regardless of whether or not moving party is present at the hearing.

Michelle Henry-Ellis v. Wyndham Vacation Ownership, Inc, et al 24CV001387

[1] DEFENDANTS’ MOTION TO COMPEL PLAINTIFF MICHELLE HENRY-ELLIS TO PROVIDE FURTHER RESPONSES TO REQUEST FOR ADMISSIONS, SET ONE

TENTATIVE RULING: The motion is GRANTED. Plaintiff is ordered to serve verified, code-compliant responses to Defendants’ Requests for Admissions, Set One, Nos. 3, 8- 14, and 16-20, no later than 10 calendar days from Notice of Entry of the present ruling. Defendants are directed to provide Notice of Entry of Order.

Defendants Wyndham Vacation Ownership, Inc., Vino Bello Resort [sued erroneously herein as Travel + Leisure Co.], and Shell Owners Association - West (collectively, “Defendants”) move, pursuant to Code of Civil Procedure section 2033.010, et seq., 1 for an order compelling Plaintiff Michelle Henry-Ellis (“Plaintiff”) to provide further responses to Defendants’ Request for Admissions, Set One, Nos. 3, 8-14, and 16-20, within 10 days of the date of hearing.

1 All subsequent statutory references are to the Code of Civil Procedure unless otherwise specified.

“On receipt of a response to requests for admissions, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply: (1) An answer to a particular request is evasive or incomplete. (2) An objection to a particular request is without merit or too general.” (§ 2033.290, subd. (a).) The statutory authority for a motion to compel a further response to requests for admissions contains language identical with that providing for a motion to compel further response to interrogatories. (See §§ 2030.300, subd. (b) and 2033.290, subd. (b).)

Unlike the authority for a motion to compel further responses to production of documents, section 2033.290 does not require a showing of good cause justifying the discovery sought. (See §§ 2031.310, subd. (b)(1) and 2033.290, subd. (b).) Based on the foregoing, while the party propounding requests for admissions may have the burden of filing a motion to compel if it finds the answers it receives unsatisfactory, the burden of justifying any objection and failure to respond remains at all times with the party resisting the request. (See Coy v.

Super. Ct. (1962) 58 Cal.2d 210, 220-21.)

Here, Defendants argues that Plaintiff’s responses are evasive, insufficient, improper and against the spirit of the Discovery Action, and that many of the objections are without merit. The Court finds that Defendants have met their burden on the Motion. Plaintiff’s response to Nos. 3 and 8-14 solely contained objections. However, the No. 3 simply asks Plaintiff, in this slip and fall case, to admit the type of shoes she was wearing when the incident occurred, and Nos. 8-14 all concern medical conditions, obtained from Plaintiff’s medical records produced in discovery, which are relevant to the body parts Plaintiff has directly put at issue in this case.

Finally, Nos. 16-20 ask Plaintiff to admit or deny that she has evidence of several assertions relating to Defendants’ respective responsibilities and liability. Plaintiff responded to Nos. 16-20 with an assertion that she lacks sufficient information and knowledge to respond. This response is insufficient, as the evidence in Plaintiff’s possession at this time either establishes the propositions at issue or it does not.

Plaintiff has failed to meet her burden to justify the failure to fully respond, as Plaintiff has not filed an opposition to the motion. Therefore, Defendants’ motion is GRANTED.

[2] DEFENDANTS’ MOTION TO COMPEL PLAINTIFF MICHELLE HENRY-ELLIS TO PROVIDE RESPONSES TO FORM INTERROGATORIES, SET TWO

TENTATIVE RULING: The motion is GRANTED. Plaintiff is ordered to serve verified, code-compliant responses without objection to Defendants’ Form Interrogatories, Set Two, no later than 10 calendar days from Notice of Entry of the present ruling. Defendants are directed to provide Notice of Entry of Order.

Defendants Wyndham Vacation Ownership, Inc., Vino Bello Resort [sued erroneously herein as Travel + Leisure Co.], and Shell Owners Association - West (collectively, “Defendants”) move, pursuant to Code of Civil Procedure section 2030.290, 2 for an order

2 All subsequent statutory references are to the Code of Civil Procedure unless otherwise specified.

compelling Plaintiff Michelle Henry-Ellis (“Plaintiff”) to provide responses to Defendants’ Form Interrogatories, Set Two, without objection within 10 days of the date of hearing.3

If a party to whom interrogatories were directed fails to serve a timely response, the responding party waives all objections and the propounding party may move for an order compelling responses and for a monetary sanction. (§ 2030.290, subds. (a)-(c).) All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. (Weil & Brown, Cal. Practice Guide, Civ.

Proc. Before Trial (The Rutter Group 2022), Ch. 8F, § 8:1140, p. 8F-59, citing Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905-06.) The moving party is not required to show a “reasonable and good faith attempt” to resolve the matter informally with opposing counsel before filing the motion. (§ 2030.290; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants, (2007) 148 Cal.App.4th 390, 411.)

Defendants submit evidence demonstrating that the discovery was properly propounded and timely responses were not served. (Declaration of Madison M. Simmons (“Simmons Decl.”) at ¶¶ 3-4.) Thus, Plaintiff shall serve verified code-compliant responses, without objections, within 10 calendar days of service of notice of entry of order. (§ 2030.290, subds. (a)-(b).)

[3] DEFENDANTS’ MOTION TO COMPEL PLAINTIFF MICHELLE HENRY-ELLIS TO PROVIDE RESPONSES TO SUPPLEMENTAL REQUESTS FOR PRODUCTION OF DOCUMENTS AND SUPPLEMENTAL INTERROGATORIES

TENTATIVE RULING: The motion is GRANTED. Plaintiff is ordered to serve verified, code-compliant responses without objection to Defendants’ Supplemental Form Interrogatories, Set One, and Supplemental Request for Production of Documents, Set One, no later than 10 calendar days from Notice of Entry of the present ruling. Defendants are directed to provide Notice of Entry of Order.

Defendants Wyndham Vacation Ownership, Inc., Vino Bello Resort [sued erroneously herein as Travel + Leisure Co.], and Shell Owners Association - West (collectively, “Defendants”) move for an order compelling Plaintiff Michelle Henry-Ellis (“Plaintiff”) to provide supplemental responses to Defendants’ Special Interrogatories, Set One, and Requests for Production, Set One, respectively, without objection within 10 days of the date of hearing.

The Civil Discovery Act allows a party to propound a supplemental interrogatory or request for production of documents to elicit any later acquired information or documents bearing on all answers and productions previously made by any party in response to interrogatories. (Code Civ. Proc., §§ 2030.070, 2031.050.) 4 A party may propound a supplemental interrogatory or document request twice before the initial setting of a trial date, and once after the initial setting of a trial date. (Ibid.)

3 Although the Motion is noticed as one to compel “further” responses, the Support Memorandum and accompanying Declaration make clear that the Motion is, in fact, one to compel responses due to Plaintiff’s failure to serve any responses. 4 All subsequent statutory references are to the Code of Civil Procedure unless otherwise specified.

If a party to whom interrogatories or requests for production of documents were directed fails to serve a timely response, the responding party waives all objections and the propounding party may move for an order compelling responses and for a monetary sanction. (§§ 2030.290, subds. (a)-(c), 2031.300, subds. (a)-(c).) All that need be shown in the moving papers is that a set of interrogatories or request for production was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. (Weil & Brown, Cal.

Practice Guide, Civ. Proc. Before Trial (The Rutter Group 2022), Ch. 8F, § 8:1140, p. 8F- 59, citing Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905-06.) The moving party is not required to show a “reasonable and good faith attempt” to resolve the matter informally with opposing counsel before filing the motion. (Code Civ. Proc., § 2030.290; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants, (2007) 148 Cal.App.4th 390, 411.)

Here, Defendants submit evidence demonstrating that the supplemental discovery requests were properly propounded and timely responses were not served. (Declaration of Madison M. Simmons, ¶¶ 3-4, Exhs. 2-3.) There is no indication in the file that Defendants have previously propounded supplemental interrogatories or requests for production. Thus, Plaintiff shall serve verified code-compliant responses, without objections, within 10 calendar days of service of notice of entry of order. (§§ 2030.290, subd. (a)-(b), 2031.300, subd. (a)-(b).)

** at 9:30 a.m. ** American Express National Bank v. Lynn Reclite 25CV000807

MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION

TENTATIVE RULING: The motion is GRANTED.

Plaintiff American Express National Bank moves, pursuant Code of Civil Procedure section 437c, for an order entering summary judgment in favor of Plaintiff and against Defendant Lynn Reclite or in the alternative for an order entering summary adjudication in favor of Plaintiff and against Defendant.

“A party may move for summary judgment in an action or proceeding if it is contended . . . that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c, subd. (a)(1).) “A plaintiff . . . has met that party’s burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff . . . has met that burden, the burden shifts to the defendant . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p); see also Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar) [“a plaintiff bears the burden of persuasion that ‘each element of’ the ‘cause of action’ in question has been ‘proved,’ and hence that ‘there is no defense’ thereto”].)

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