Judge: Andrew E. Cooper, Case: 18CHCV00045, Date: 2023-05-25 Tentative Ruling

Counsel wishing to submit on a tentative ruling may inform the clerk or courtroom assisant in North Valley Department F51, 9425 Penfield Ave., Chatsworth, CA 91311, at (818) 407-2251.  Please be aware that unless all parties submit, the matter will still be called for hearing and may be argued by any appearing/non-submitting parties. If the matter is submitted on the court's tentative ruling by all parties, counsel for moving party shall give notice of ruling. This may be done by incorporating verbatim the court's tentative ruling. The tentative ruling may be extracted verbatim by copying and specially pasting, as unformatted text, from the Los Angeles Superior Court’s website, http://www.lasuperiorcourt.org. All hearings on law and motion and other calendar matters are generally NOT transcribed by a court reporter unless one is provided by the party(ies).

Case Number: 18CHCV00045    Hearing Date: May 25, 2023    Dept: F51

MOTION FOR TERMINATING SANCTIONS

MOVING PARTY: Plaintiff Christina Safayee (“Plaintiff”)

RESPONDING PARTY: Defendant Vitali Elkabetz (“Defendant”)

NOTICE: OK

RELIEF REQUESTED: A terminating sanction striking Defendant’s answer, and monetary sanctions against Defendant and his counsel in the amount of $3,660.00.

TENTATIVE RULING: The unopposed motion is granted. The Court strikes Defendant’s answer and re-enters default against him and imposes monetary sanctions against him in the amount of $1,800.00.

Plaintiff is reminded to review the 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil. When e-filing documents, parties must comply with the “TECHNICAL REQUIREMENTS” which are set forth at page 4, line 4 through page 5, line 12 of the Court’s 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil (particularly bookmarking declarations and exhibits). (CRC 3.1110(f)(4).) Failure to comply with these requirements in the future may result in papers being rejected, matters being placed off calendar, matters being continued so documents can be resubmitted in compliance with these requirements, documents not being considered and/or the imposition of sanctions.

BACKGROUND¿ 

Plaintiff alleges her ownership in a certain real property with third party Anthony Beck (collectively, “Owners”). On 9/11/17, Owners executed a contract for a remodel project with defendant Elkabetz, Inc. Owners ordered cabinets and tiles, and work commenced on 9/19/17. During construction, the parties agreed to change orders, which increased the contract amount. Owners continued to make progress payments.

The complaint alleges that defendants completed substandard work, failed to complete certain work to building code, and failed to make requested corrections. Plaintiff also alleges that Elkabetz, Inc. employees broke certain furniture. Plaintiff demanded a reimbursement to hire a new contractor, but the demand was rejected.

On 10/28/18, Plaintiff filed her complaint, alleging against four defendants the following causes of action: (l) Breach of Contract; (2) Negligence; and (3) Fraud (Negligent Misrepresentation). On 1/15/19 and 3/19/19, default was entered against all defendants. On 5/28/19, default judgment was entered against all defendants.

On 1/10/20, the Court granted Defendant’s motion to set aside default judgment. On 1/17/20, Defendant filed his answer to Plaintiff’s complaint.

On 3/10/22, the Court granted Plaintiff’s motion to compel Defendant’s initial responses to her first set of Form Interrogatories, Special Interrogatories, and Requests for Production of Documents, and imposed a monetary sanction against Defendant. “As of the date of this Motion for Terminating Sanctions, Defendant ELKABETZ has failed to properly respond to discovery requests in any manner whatsoever and has failed to pay the monetary sanctions as ordered.” (Pl.’s Mot. 4:15–17.)

On 3/6/23, Plaintiff filed and served the instant motion. No opposition has been filed to date. On 4/20/23, the Court granted Defendant’s attorney’s motion to be relieved as counsel. Counsel represented that “Defendant fired him, has not paid legal fees, and has not communicated with him since 2021.”

ANALYSIS

The Court may issue a terminating sanction against a party who engages in the misuse of the discovery process by one of the following orders: “(1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process; (2) An order staying further proceedings by that party until an order for discovery is obeyed; (3) An order dismissing the action, or any part of the action, of that party; (4) An order rendering a judgment by default against that party.” (Code Civ. Proc. § 2023.030, subd. (d).)

Additionally, “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.” (Code Civ. Proc. § 2023.030, subd. (a).)

Here, Plaintiff brings the instant action on the basis that Defendant has willfully failed to respond to the discovery requests, which were originally propounded on 7/29/20, despite multiple opportunities to do so. (Decl. of Taylor F. Williams-Moniz, ¶¶ 6–12.) Moreover, Defendant failed to comply with the Court’s 3/10/22 order directing him to serve verified responses to the discovery requests within 10 days, and to pay monetary sanctions. (3/10/22 Min. Order.)

Here, in addition to her request for terminating sanctions, Plaintiff requests monetary sanctions in the total amount of $3,660.00 to be imposed on Defendant. This amount includes: (1) 7 hours of counsel’s time spent working on this motion; (2) an anticipated 2 hours to prepare a reply to Defendant’s opposition; and (3) 3 hours appearing at the instant hearing, at his hourly billing rate of $300.00 per hour, in addition to a $60.00 filing fee. (Williams-Moniz Decl., ¶¶ 19–25.)

The Court notes that Defendant has failed to oppose the instant motion, and that his former attorney represented that they have not communicated since 2021. Based on the foregoing, the Court finds sufficient basis to grant the instant motion and order terminating sanctions striking Defendant’s answer and entering default against him. The Court finds it reasonable to impose $1,800.00 in monetary sanctions against Defendant, payable within 30 days.

CONCLUSION 

The unopposed motion is granted. The Court strikes Defendant’s answer and re-enters default against him and imposes monetary sanctions against him in the amount of $1,800.00.