Motion for Terminating Sanctions ? CONTINUED to 1/23/17 at 1?30 p.m.
Defendant Deric Lords, D.P.M.?s motion for terminating sanctions against plaintiff Ellis Horton (?Plaintiff?) or, alternatively, for further monetary, evidentiary and issue sanctions against Plaintiff and/or Plaintiff?s counsel is continued to 1/23/2017 at 1:30 p.m.
The Defendant?s proof of service of the motion is defective for a number of reasons, chief among them that it does not state the date on which the motion was served (although it does state it was served by mail). The Court notes that the Proof of Service also does not state that the declarant was employed in the county where the mailing occurred, or the date and place of business where the correspondence was placed for deposit in the US Postal Service. See CCP Section 1013a(3).
In the meantime, Plaintiff?s counsel moved its office and did not give notice of the change of address to the clerk or to Defendant?s counsel.? Consequently, the motion papers served by mail on Plaintiff?s counsel were sent to the prior address and were not received in the ordinary course; they were returned to Defendant, who then sent them (as a ?courtesy copy?) via email.? Plaintiff did not thereafter file an opposition to the motion.
Although the Court could construe Plaintiff?s failure to file an opposition as a concession of the merits of the motion, in light of the fact that both parties erred in connection with the service, the Court deems it fair and appropriate to give Plaintiff a further opportunity to file an opposition to the motion, should it choose to do so.? The relief requested in the motion is a significant sanction, and the Court wishes to ensure that the Plaintiff has the full statutory time period to file an opposition to the motion.
Accordingly, the hearing on the motion is continued to January 23, 2017 at 1:30 p.m.
Clerk to give notice to all parties.