Perez v. Perez et al.

On December 4, 2025, plaintiff obtained leave to file a Third Amended Complaint (“TAC”), which plaintiff filed on December 10, 2025, and served that same day by email on defense counsel Tres Porter. Though defendants have actively defended this lawsuit all along, without communication to defense counsel, plaintiff request and obtained entry of Roberto Perez’s default on March 16, 2026. 7

Despite the fact that the TAC was signed and accompanied by a proof of service, Mr. Porter assumed that the TAC was simply provided to him as a courtesy copy, even though just days before the court had granted plaintiff leave to file the TAC. Mr. Porter believed it was a courtesy copy because the TAC was not file stamped. Additionally, he did not believe a fresh answer was required from Roberto Perez because the TAC added no new claim against him, instead only adding a new cause of action against Nina Perez.

While Mr. Porter recognizes that an answer to the TAC should have been filed, the court finds that the failure to do so was the result of mistake, inadvertence, surprise or excusable neglect, especially in light of the fact that the TAC asserted no new claim against Roberto Perez, who had answered the Second Amended Complaint on July 14, 2025.

The court also notes that it is an unfair and almost dirty tactic to quietly enter the default of a defendant, represented by counsel, without first giving advance warning. Though plaintiff represents himself, the California Attorney Guidelines of Civility and Professionalism2, section 15: “An attorney should not take the default of an opposing party known to be represented by counsel without giving the party advance warning. For example an attorney should not race opposing counsel to the courthouse to knowingly enter a default before a responsive pleading can be filed. This guideline is intended to apply only to taking a default when there is a failure to timely respond to complaints, cross-complaints, and amended pleadings.”

The motion filed on June 1, 2026 also seeks to set aside a Request for Entry of Default of Nina Perez that was submitted on May 13, 2026. That request was denied on May 13. The motion is therefore moot as to the Request. Moreover, a Request for Entry of Default is not an order of the court that is susceptible to being set aside. It is just a request. While Nina Perez’s default was subsequently entered pursuant to a Request submitted on June 4, 2026, the motion is not directed at that entry. Additionally, the motion will not be granted as to Nina Perez because the motion offers no explanation for the failure to file an answer on her behalf.

The court will be quite interested in hearing Mr. Porter’s explanation for why he allowed Nina Perez’s default to be entered by not filing an answer, when he necessarily knew prior to filing his motion on June 1 that an answer was needed. Instead he for some unexplained reason took no action and allowed her default to be entered. To prevent entry of her default as well, Mr. Porter simply needed to file an answer to the TAC, even if a Request for Entry of Default was pending but not yet acted upon by the court.

Motion to Compel

Plaintiff moves to compel further responses to special interrogatories from defendant Roberto. The interrogatories most seek limited information about Roberto’s Jehovah’s Witness church attendance and communications, and information about defendant Nina’s disability/Alzheimer’s disease. Roberto objected on grounds of relevancy and raised the clergy / penitent privilege.

2 https://www.calbar.ca.gov/sites/default/files/2026-01/Civility-Guidelines_Samples.pdf

With regards to the scope of discovery, the information sought must be relevant to the “subject matter” of the pending action or to the determination of a motion in that action. (Code Civ. Proc., § 2017.010.) Information should be regarded as “relevant” to the subject matter if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.) Discovery extends to any information that reasonably might lead to other evidence that would be admissible at trial.

Thus, the scope of permissible discovery is one of reason, logic and common sense. (Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1611.) The “relevance to the subject matter” and “reasonably calculated to lead to discovery of admissible evidence” standards are applied liberally. Any doubt is generally resolved in favor of permitting discovery, particularly where the precise issues in the case are not yet clearly established. (Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790 fns. 7-8.)

Evidence Code section 917 provides at subdivision (a) “Whenever a privilege is claimed on the ground that the matter sought to be disclosed is a communication made in confidence in the course of the ... clergy-penitent, ... relationship, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish that the communication was not confidential.” (Italics added.)

[T]he privilege-claimant “has the initial burden of proving the preliminary facts to show the privilege applies.” (Story v. Superior Court (2003) 109 Cal.App.4th 1007, 1014, 135 Cal.Rptr.2d 532, italics added.) “Once the claimant establishes the preliminary facts ..., the burden of proof shifts to the opponent of the privilege. To obtain disclosure, the opponent must rebut the statutory presumption of confidentiality set forth in [Evidence Code] section 917[, subdivision (a).] ... Alternatively, the opponent of the privilege may show that the privilege has been waived under [Evidence Code] section 912 [[[....” (Story, supra, at p. 1015, 135 Cal.Rptr.2d 532, italics added.) (Roman Catholic Archbishop of Los Angeles v. Superior Court (2005) 131 Cal.App.4th 417, 442, footnotes omitted.)

“In order for a statement to be privileged, it must satisfy all of the conceptual requirements of a penitential communication: 1) it must be intended to be in confidence; 2) it must be made to a member of the clergy who in the course of his or her religious discipline or practice is authorized or accustomed to hear such communications; and 3) such member of the clergy has a duty under the discipline or tenets of the church, religious denomination or organization to keep such communications secret. (§ 1032; 2 Jefferson, Cal. Evidence Benchbook (2d ed.1982) § 39.1, pp. 1405–1407.)” (People v. Edwards, supra, 203 Cal.App.3d at pp. 1362–1363, 248 Cal.Rptr. 53, italics added.) (Roman Catholic Archbishop of Los Angeles, supra, 131 Cal.App.4th at pp. 443–444.)

As to interrogatories nos. 1, 2, and 13-15, plaintiff states that he seeks identifying information necessary to pursue third-party discovery from Roberto’s Jehovah’s Witness congregation, which maintains documentation of his and Nina’s abuse of their children. 9

Since the interrogatories do not request the content of any communication, but simply ask whether such certain discussions occurred, and where Roberto attends, plaintiff has shown that the interrogatories are within the scope of discovery. Roberto has not met his burden of showing that the interrogatories seek disclosure of privileged communications. No declaration is filed with the motion providing factual evidence showing that answering the interrogatories would disclose penitential communications.

The response to interrogatory 5 is not adequate or Code-compliant. The court reads the response to interrogatory no. 5 as a response claiming inability to respond because Roberto does not know who or what is referenced in the interrogatory. A response stating “inability to respond” is legally insufficient. If the responding party lacks personal knowledge sufficient to respond, the party may so state, but only after making a reasonable and good faith effort to obtain the information by inquiry to other persons or organizations. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 406.) There is no indication that Roberto made any inquiry or effort to understand who or what the interrogatory references. With plaintiff indicating that this comes from a court filing by Roberto, the inquiry should start there.

Regarding interrogatory no. 10, Roberto’s responsive separate statement simply asserts without analysis that the information requested is not relevant. Because relevance is not apparent on the face of the interrogatory, plaintiff must initially make some showing that the information sought is relevant and discoverable. Plaintiff argues, “Defendant’s relevance objection is unsupported and contradicted by his own prior filings. Defendant Roberto Sr. has affirmatively represented to the court that Robert Jr. holds power of attorney over him.

Defendant cannot simultaneously rely on the existence of a power of attorney in court filings and then claim that the date it was acquired is irrelevant or inadmissible. The interrogatory seeks the date on which Defendant contends Robert Jr. acquired that authority. The timing of the alleged power of attorney is directly relevant to Defendant’s litigation conduct, including Robert Jr.’s purported authority to act, communicate, and file documents on Defendant’s behalf.” However, plaintiff does not identify or attach copies of the filings in which these representations were made.

Factual assertions in the separate statement or points and authorities need to be backed up with admissible evidence. In law and motion practice, factual evidence is supplied to the court by way of declarations. (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224.) The court must disregard facts stated in unverified memo of points and authorities, unless supported by reference to evidence presented in declarations or otherwise. (Smith, Smith & Kring v. Superior Court (1997) 60 Cal.App.4th 573, 578.)

Since plaintiff filed no declaration providing the factual information relied upon, the motion is denied as to interrogatory no.

10. Plaintiff filed the motion, and must provide an adequate basis to grant the motion.

Interrogatory nos. 11 and 21 relate to Nina’s disability and/or Alzheimer’s disease. The “I do not recall” answer to no. 11 is inadequate, as the response does not indicate that Roberto made a reasonable and good faith effort to obtain the information. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 406.)

As to relevancy, Roberto contends that defendants have not placed their medical condition “at issue” in this case. Plaintiff responds that “Defendant Roberto Sr. 10

has repeatedly placed Nina Perez’s alleged Alzheimer’s diagnosis at issue in this litigation. Defendant has filed multiple court documents asserting that Nina suffers from Alzheimer’s, has sought to act on her behalf as guardian ad litem, and has answered discovery for her under a claimed power of attorney.” But again plaintiff references no specific court filing in which this occurred. The relevance of Nina’s current disability or medical condition to plaintiff’s claims is not apparent on the face of the interrogatories, and plaintiff fails to back up his factual assertions with evidence.

Inasmuch as the motion is granted for the most part, Roberto’s request for sanctions is denied.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: lmg on 6-29-26. (Judge’s initials) (Date)

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