Motion for Terminating Sanctions; Motion to reopen exhibit and witness cutoff
A notice of motion and motion to be relieved as counsel under CCP section 284(2) shall be directed to the client and shall be made on the Notice of Motion and Motion to Be Relieved as Counsel-Civil form (MC-051). (Cal. R. Ct. 3.1362(a).) No memorandum is required for the motion. (Cal. R. Ct. 3.l362(b)). The motion shall be accompanied by a declaration stating in general terms, without compromising the confidentiality of the attorney-client relationship, why counsel is making a motion instead of filing a consent. (Cal.
R. Ct. 3.1362(c)). If the motion is served by mail, it shall be accompanied by a declaration stating facts showing either that (1) the service address is the current residence or business address of the client or (2) the service address is the last known residence or business address of the client and the attorney has been unable to locate a more current address after making reasonable efforts to do so within 30 days prior to filing the motion. (Cal. R. Ct. 3.1362(d)).
The motion may be brought on various grounds, some of which include the client’s failure to pay attorney fees (People v. Prince (1968) 268 Cal.App.2d 398, 406), the client’s insistence on an action that is not justified under existing law or by good faith argument (Estate of Falco v. Decker (1987) 188 Cal.App.3d 1004, 1015), and a conflict of interest between counsel and the client (Aceves v. Superior Court (1996) 51 Cal.App.4th 584, 592).
Here, the motion is procedurally and substantively sufficient. Counsel has provided the reason for withdrawal—a breakdown in the attorney- client relationship. Counsel has properly served the client. The client has not filed an opposition establishing prejudice. As this case is in its early stages, with trial not yet set, the court does not find any prejudice in granting the motion.
For this reason, the motion is granted. The order relieving counsel shall become effective upon the filing of a proof of service showing that the signed order has been served on the client.
Moving counsel to give notice.
Looking for case law or statutes not cited here? Search published authorities
Examples: “Why did the court rule this way?” · “What were the procedural grounds?” · “Is appearance required?”
Terminating Sanctions
For the reasons set forth below, Plaintiff Conrad Phillip Kimes’ motion for terminating sanctions is DENIED.
Reply Brief Exceeds Page Limit
As a preliminary matter, the court notes that Plaintiff’s Reply exceeds the ten-page limit pursuant to Cal. R. Ct., Rule 3.113, subd. (d). Plaintiff’s reply brief is a total of 26 pages, not including the “supplemental” reply brief that was filed. The court will not consider any page beyond the tenth page of the Reply brief, including any of the pages in the supplemental Reply brief.
Statement of Law
Plaintiff cites to Code Civ. Proc. § 2023.030, which states in pertinent part:
To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process:
(a) The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.
...
(d) The court may impose a terminating sanction by one of the following orders: ... (3) An order dismissing the action, or any part of the action, of that party. ...
Additionally, Code Civ. Proc. § 2031.310:
(a) On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: .... (i) Except as provided in subdivision (j), if a party fails to obey an order compelling further response, 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 (commencing with Section 2023.010).
“A trial court has broad discretion to impose discovery sanctions, but two facts are generally prerequisite to the imposition of nonmonetary sanctions ... (1) absent unusual circumstances, there must be a failure to comply with a court order, and (2) the failure must be willful.” (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327; see also, New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1423.)
“The trial court should consider both the conduct being sanctioned and its effect on the party seeking discovery and, in choosing a sanction, should ‘attempt [] to tailor the sanction to the harm caused by the withheld discovery.’ [Citations.]” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991.)
Finally, Code Civ. Proc. § 2023.040 provides: “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”
Merits
First, Plaintiff failed to comply with Code Civ. Proc. § 2023.040. There is no notice of motion. Nor does Plaintiff specify in his opening paragraphs every person, party and/or attorney against whom the sanction is sought and the type of sanction. However, Defendants do not raise this point.
Defendants contend that terminating sanctions are inappropriate because Plaintiff failed to establish that Defendants violated any
court order. “The statutory requirement that there must be a failure to obey an order compelling discovery before the court may impose a nonmonetary sanction for misuse of the discovery process provides some assurance that such a potentially severe sanction will be reserved for those circumstances where the party's discovery obligation is clear and the failure to comply with that obligation is clearly apparent.” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1423).
Plaintiff’s argument for terminating sanctions rests on the purported failure to produce photographs despite prior requests. Plaintiff did not file a motion to compel production, but rather requests that this court award terminating sanctions against Defendants. But this is an extreme remedy. Plaintiff failed to show why less drastic sanctions would not be effective. Accordingly, the court denies the motion for sanctions.
Alternatively, Plaintiff moves to compel the production of photographs that were identified in the “sworn testimony” of Mr. Carroll. However, Plaintiff failed to establish that Mr. Carroll was ever served with requests for production or had an obligation to produce his own photographs. (See Decl. of Whirl, ¶¶ 4, 5).
Both parties agree that photographs were produced, which were attachments to the insurance carrier (see Decl. of Whirl, ¶ 3), and Plaintiff does not contest that he failed to propound requests for production to Mr. Carroll, specifically.
Accordingly, this request for relief is also denied.
Reopen Exhibit and Witness “Cut-Offs” and “Lists”
For the reasons set forth below, Plaintiff Conrad Phillip Kimes’ motion to reopen exhibit and witness cutoff is DENIED.
First and foremost, it is not clear what type of relief Plaintiff is requesting. His motion is titled a motion “to reopen exhibit and witness cut-off”. Plaintiff argues in his opening paragraph that he requests that the court reopen exhibit and witness cut-offs, contending that “evidentiary gaps have been identified that require supplementation” and “reopening the cut-off will not prejudice the Defendants.” (Motion, 1:15-18). Defendants, in their Opposition, cite to the requirements for a motion to reopen discovery brought under Code Civ. Proc. § 2024.050.
However, Plaintiff titles his Reply brief “Motion to Reopen Exhibit and Witness Lists”. (Emphasis added [See ROA 440]). Plaintiff then goes on to identify specific witnesses and exhibits that are “sought to be added.” Plaintiff then states: “Plaintiff respectfully requests that this Court grant the Motion to Reopen the Exhibit and Witness List, admit these critical documents into the record.” (Reply, 5:27-28).
To the extent Plaintiff is requesting that the court allow him to supplement his witness and exhibit list for trial, the motion is denied as moot, as trial has now been continued to 11/2/26.
To the extent Plaintiff is requesting that the court reopen discovery, the motion is also denied.
Code Civ. Proc. § 2024.050 states in relevant part:
(a) On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.
(b) In exercising its discretion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following: (1) The necessity and the reasons for the discovery. (2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier. (3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party. (4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.
First, Plaintiff failed to provide a meet and confer declaration with the motion as required by Code Civ. Proc. § 2024.050, subd. (a). Plaintiff did not provide any declaration with his Motion. He filed a declaration with his Reply (see ROA 439) but did not attest to a meet and confer.
Second, Plaintiff failed to establish in his motion which discovery needs to be obtained and the necessity and reasons for this discovery. The only contention in the motion that addresses the type of discovery Plaintiff seeks and why it could not be made earlier is the following: “Newly developed medical evidence exists that was not available prior to the cut-off.” (Motion, 2:1-2). However, he does not provide any further information about this “medical evidence” and why it is necessary to this action.
Then, in support of his Reply, Plaintiff sets forth the following:
The witnesses Plaintiff seeks to add include, but are not limited to:
1. Charlotte Comito. former Beacon Hill HOA Board President. who photographed the debris covering Plaintiffs drain immediately before Defendants' May 10. 2021 cleanup and photographed the drain immediately after cleanup.
2. Lisa Mills, Farmers Insurance adjuster. whose emails show that more than six months after Plaintiffs injury she was still requesting photographs from Rich Carroll.
3. Treating physicians and emergency room medical providers relating to Plaintiffs December 2025 medical developments, including records identifying a potentially life threatening condition requiring immediate emergency medical treatment
The exhibits Plaintiff seeks to add include, but are not limited to:
1. Plaintiffs photographs of the drain area and debris condition.
2. Charlotte Comito's photographs taken immediately before and immediately after Defendants' May 10, 2021, cleanup, that identically match Plaintiffs post-accident photographs, showing that the HOA and Plaintiff produced their photographs of the accident scent but Defendants DID NOT.
3. Defendants' swapped out substituted photos of their Rayco_Bates_0000728 through Rayco_Bates_0000762 production and related emails.
4. Emails between Rich Carroll and Lisa Mills.
5. Emails from defense counsel Vanessa C. Whirl relating to changing sworn positions regarding the existence. production and identification of photographs
6. Deposition excerpts from Rich Carroll and other witnesses concerning the photographs. the drain condition, and the chronology of events 7. Additional emails, photographs. correspondence, and documentary evidence omitted from the prior exhibit list by former counsel.
8. Plaintiff's May 8, 2021, written communications to Rich Carroll, sent immediately following Plaintiff's hospitalization, notifying Rich Carroll that Defendants debris remained over Plaintiff's drain, informing him and demanding immediate removal of the debris. These communications are highly probative of Defendants' notice, knowledge, opportunity to preserve evidence, and failure to promptly remedy the hazardous condition.
(See Reply, pgs. 1-3; see also Decl. of Kimes ISO Reply, ¶¶ 6-15).
There are various issues with the Reply and declaration in support of the Reply.
First, Plaintiff failed to mention any of these exhibits and witnesses in his motion (other than his vague reference to “medical evidence” that was obtained after the cut-off). Defendants were not provided with an opportunity to address any of this in their Opposition. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537 [“The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers.”]).
Second, Plaintiff still does not explain why discovery needs to be reopened (assuming this is the relief he is requesting) because of a December 2025 ER visit.
Finally, all the other witnesses and exhibits identified in the Reply brief and in Plaintiff’s declaration do not relate to the medical evidence that Plaintiff referred to in his motion.
Accordingly, the motion is denied.
Defendant shall give notice of both rulings.
9 S. vs. DOE 1 CONTINUED TO 7/16/26 IN DEPT. CM02