Judge: Anne Richardson, Case: 21BBCV00732, Date: 2024-01-04 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 21BBCV00732    Hearing Date: January 4, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Pleadings and Other Actions

Plaintiffs Bagrat Ogannes, Giorgi Imnaishvili, and Tigran Hakobyan initiated this action (Instant Action) on August 17, 2021, alleging a single claim of malicious prosecution against Defendant Armen Kavoukjian and Does 1 through 100.

The claim arose from allegations that on October 6, 2015, Kavoukjian and his company, GreenEden, LLC (GreenEden)—alleged as an alter ego of Kavoukjian—initiated LASC No. BC596896 (Underlying Action) against Plaintiffs in the instant action, with Plaintiffs ultimately receiving judgment in their favor on or about February 20, 2019, thus comprising an action brought as malicious prosecution against Plaintiffs without probable cause.

On October 14, 2021, in the Instant Action, Plaintiffs requested the dismissal of Giorgi Imnaishvili and Tigran Hakobyan as Plaintiffs. Thereafter, on November 8, 2021, Plaintiff Ogannes filed a First Amended Complaint (FAC) that retained the same factual allegations supporting the malicious prosecution claim against Defendant Kavoukjian and Does 1 through 100.

On April 12, 2022, Defendant Kavoukjian filed a notice of related case, seeking to relate this action to LASC No. 20STCV07228—initiated in Department 34—in which Plaintiff Ogannes, as well as Giorgi Imnaishvili and Tigran Hakobyan, alleged a single claim of malicious prosecution against Kavoukjian, Haruntin Kassakhian, GreenEden, LLC, and Does 1 through 100. The claim arose from the same factual allegations as this action.

On April 14, 2022, Department 34 issued an order relating this action and 20STCV07228.

On April 26, 2022, Kavoukjian made a peremptory strike to the bench officer in 20STCV07228, which Department 34 granted on April 27, 2022.

On May 3, 2022, Department 1 kept the two actions as related cases and reassigned them for all purposes to Department 40.

Relevant Procedural History

As set forth in the motion, on May 16, 2022, Defendant Kavoukjian propounded on Plaintiff Ogannes Form Interrogatories – General, Set One (FROGs, Set One), Special Interrogatories, Set One (SROGs, Set One), and Requests for Production, Set One (RPDs, Set One).

On August 22, 2022, after extensions from Defendant Kavoukjian, Plaintiff Ogannes served his responses via mail, which were unverified.

On September 28, 2022, Kavoukjian’s counsel notified Ogannes’ counsel that the responses were unverified, requesting an extension of time to file motions to compel further discovery, with Ogannes’ counsel promising to provide verifications and granting an extension through November 17, 2022.

On August 22, 2022, Ogannes’ counsel provided verifications for the discovery responses.

On November 4, 2022, Kavoukjian’s counsel sent correspondence to Ogannes’ counsel outlining the deficiencies of the discovery responses—e.g., boilerplate and non-meritorious objections—and requesting supplemental responses.

On November 15, 2022, Ogannes’ counsel agreed to serve supplemental responses by January 16, 2023 and allowed Kavoukjian to file compel-further motions through December 21, 2022. Further extensions were granted to Plaintiff’s counsel to provide supplemental responses based upon his absence from the office on December 8, 2022, and January 24, 2023. It was agreed that Plaintiff Ogannes would supplement discovery responses by February 28, 2023, with failure to do so resulting in Defendant Kavoukjian filing motions to compel, to be filed no later than March 30, 2023.

Plaintiff Ogannes ultimately failed to supplement responses to the May 16, 2022 discovery.

As a result, on March 30, 2023, Defendant Kavoukjian filed motions to compel further responses to FROGs, Set One, SROGs Set One, and to compel further production on RPDs, Set One.

The motions were ultimately unopposed by Plaintiff Ogannes.

On June 12, 2023, the Court granted Defendant Kavoukjian’s motions in full, ordering Plaintiff Ogannes to (1) provide further responses and/or production to FROGs, Set One, SROGs, Set One, and RPDs, Set One, within 30 days of June 12, 2023, and (2) remit payment of $4,850 to Defendant Kavoukjian within 30 days of June 12, 2023.

On June 13, 2023, Defendant Kavoukjian’s counsel served a notice of ruling on Plaintiff Ogannes’ counsel.

On July 12 and 14, 2023, Plaintiff Ogannes supplemented his responses and/or production to FROGs, Set One, SROGs Set One, and RPDs, Set One.

On August 16, 2023, Defendant Kavoukjian’s counsel emailed a letter to Plaintiff’s counsel explaining Plaintiff’s alleged willful disobedience of the Court’s June 12, 2023 order and informing Plaintiff’s counsel of Defendant Kavoukjian’s intention to file the instant motion seeking terminating and other sanctions.

On August 23, 2023, Plaintiff Ogannes’ counsel’s paralegal informed Defendant Kavoukjian’s counsel that supplemental responses would be provided by the following week.

On September 6, 2023, Plaintiff Ogannes’ counsel received a letter promising supplemental responses by September 29, 2023.

On September 29, 2023, Plaintiff Ogannes’ counsel served a second set of supplemental responses and/or production to FROGs, Set One, SROGs Set One, and RPDs, Set One.

On October 3, 2023, Plaintiff Ogannes’ counsel served a corrected second set of supplemental responses and/or production to FROGs, Set One, SROGs Set One, and RPDs, Set One.

Motion Before the Court

On December 7, 2023, Defendant Kavoukjian filed a motion for terminating sanctions against Plaintiff Ogannes for continued discovery abuses, including continued failure to provide adequate discovery responses and disobedience of this Court’s June 12, 2023 order through such failure.

Defendant Kavoukjian’s motion is unopposed by Plaintiff Ogannes and is now before the Court. The proof of service attached to the motion appears facially valid.

Motion for Sanctions

Legal Standard

Code of Civil Procedure section 2023.030 permits California courts to impose terminating, evidence, issue, and monetary sanctions for discovery misuses, which are defined by section 2023.010 of the Code of Civil Procedure. Misuses of the discovery process include, but are not limited to, the following:

(a) Persisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery.

(b) Using a discovery method in a manner that does not comply with its specified procedures.

(c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.

(d) Failing to respond or to submit to an authorized method of discovery.

(e) Making, without substantial justification, an unmeritorious objection to discovery.

(f) Making an evasive response to discovery.

(g) Disobeying a court order to provide discovery.

(h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery.

(i) Failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery, if the section governing a particular discovery motion requires the filing of a declaration stating facts showing that an attempt at informal resolution has been made.

(Code Civ. Proc., § 2023.010, subds. (a)-(i); see, e.g., Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545 [court imposed evidence sanctions when defendants misused discovery process by not responding to authorized method of discovery]; In re Marriage of Eustice (2015) 242 Cal.App.4th 1291, 1308-1309 [respondent was sanctioned for willfully violating order to produce accounting and financial documents].)

Terminating sanctions are drastic sanctions that should be imposed sparingly and only when it is clear that the party to be sanctioned has left no viable alternatives. (See Dept. of Forestry & Fire. Prot. v. Howell (2017) 18 Cal.App.5th 154, 191 (Dept. of Forestry), disapproved on other grounds in Presbyterian Camp & Conf. Ctrs, Inc. v. Superior Court (2021) 12 Cal.5th 493; Lopez v. Watchtower Bible & Tract Soc’y (2016) 246 Cal.App.4th 566, 604.)

The court should consider the totality of the circumstances before ordering terminating sanctions, including (1) whether the conduct of the party was willful, (2) the detriment to the party propounding discovery, and (3) the number of formal and informal attempt to obtain the discovery. (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390.) The Court is not required to find that a party acted in bad faith before imposing terminating sanctions. (See Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 703.)

Discovery sanctions “should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793.) Moreover, “[d]iscovery sanctions must be tailored in order to remedy the offending party’s discovery abuse, should not give the aggrieved party more than what it is entitled to, and should not be used to punish the offending party.” (Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1217.) An order imposing discovery sanctions is reviewed under the abuse of discretion standard. (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1422.) The court’s inherent power to curb abuses and promote fair process extends to the preclusion of evidence. (Peat, Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal.App.3d 272, 288.)

Order Granting Terminating Sanctions or Evidence, Issue, and Monetary Sanctions: DENIED.

I. Terminating Sanctions

Here, the Court finds that, even if the Court had found that a misuse of the discovery process had occurred, terminating sanctions would be premature. Viable alternatives exist meriting a denial of the terminating sanctions portion of Defendant Kavoukjian’s motion. (18 Cal.App.5th at p. 191.) For example, the Court could impose monetary sanctions, issue, and/or evidence sanctions, thereby applying an incremental approach to sanctions. (Lopez v. Watchtower Bible & Tract Soc. of New York, Inc. (2016) 246 Cal.App.4th 566, 604 [discovery statutes evince an incremental approach, starting with monetary sanctions and ending with ultimate terminating sanction].)

Terminating sanctions are thus DENIED.

II. Issue and/or Evidence Sanctions

The Court also finds insufficient grounds for issue and evidence sanctions.

A. Issue Sanctions

Issue sanctions are not proper because they are not sufficiently particularized to the relief sought from the Court.

Issue sanctions are proper only where they involve matters that the discovering party had tried to prove through the impeded discovery and were properly tailored to the specific harm caused by such withheld discovery. (Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1548.) A trial court can correctly implement such a sanction by instructing the jury that various facts should be taken as established against a party. (See Ibid.)

Defendant Kavoukjian seeks issue sanctions to the effect that it be taken as true that (1) Kavoukjian is not and never was the “alter ego” of GreenEden, (2) Kavoukjian has no personal liability for the debts and obligations of GreenEden, (3) Kavoukjian did not prosecute the Underlying Action with malice, (4) the Underlying Action was brought and prosecuted with probable cause, and (5) Plaintiff Ogannes has not sustained injury or damages because of Kavoukjian’s conduct in connection with the Underlying Action. (See Mot., p. 10.)

Such requests are not sufficiently particularized to the specific harm suffered by Defendant Kavoukjian through Plaintiff Ogannes’ alleged withholding of relevant discovery—here, the alleged defective supplemental and second supplemental responses to FROGs, Set One, SROGs Set One, and RPDs, Set One. Instead, Defendant Kavoukjian seeks an order ordering five broad issue sanctions that completely undercut Plaintiff’s ability to make a dispositive argument as to Defendant Kavoukjian’s alter ego or malicious prosecution liability. (See discussion Section II.B. infra; see FAC, ¶¶ 3, 8-9, 10-17.) In no way does Defendant Kavoukjian’s briefing explain how Plaintiff’s alleged withholding of discovery as to each individual interrogatory and production request supports one or more of the five issue sanctions proposed by Defendant Kavoukjian. Neither do the points and authorities group each of the nearly 150 discovery requests at issue here into five cohesive groups that support one or more of the five broad issue sanctions sought by Defendant Kavoukjian. In short, Defendant Kavoukjian’s sought relief is overbroad.

Issue sanctions are thus DENIED.

B. Evidence Sanctions

Evidence sanctions are not proper because the evidence sanctions sought by Defendant Kavoukjian result in an avoidance of a decision on the merits by relieving Defendant Kavoukjian of the burden of proving a defense to Plaintiff’s claims.

The operative First Amended Complaint alleges a single claim of malicious prosecution against Defendant Kavoukjian for instituting the Underlying Action against Plaintiff Ogannes alongside Kavoukjian’s company, GreenEden, LLC, with the Underlying Action ultimately resolved in Plaintiff Ogannes’ favor. (FAC, ¶¶ 1-6, 8-9, 10-17.)

“[T]he tort of malicious prosecution … consists of the following elements: “[A] plaintiff must demonstrate ‘that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff’s, favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice [citations].’” [Citations.].” (Dalany v. American Pacific Holding Corp. (1996) 42 Cal.App.4th 822, 827.)

California courts have found that it is not an abuse of discretion for a judge to refuse to impose evidence sanctions against a defendant and to instead impose monetary sanctions, when the evidence sanctions sought by the plaintiffs are sweeping evidentiary conclusions that are at the heart of their theory of the defendant’s liability. (Rutledge v Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1194 (Rutledge).) Ordering evidence sanctions in these circumstances would provide a windfall to the plaintiffs by relieving them of their burden of proving their theory of liability. Such an order would also be contrary to the purpose of discovery sanctions, which is not avoidance of a decision on the merits. (Ibid.)

Defendant Kavoukjian seeks evidence sanctions prohibiting Plaintiff Ogannes from introducing evidence against Defendant Kavoukjian to the effect that (1) Kavoukjian is or was the “alter ego” of GreenEden, (2) Kavoukjian is liable for the debts and obligations of GreenEden, (3) Kavoukjian prosecuted the Underlying Action with malice, (4) the Underlying Action was brought and prosecuted without probable cause, and (5) Kavoukjian is liable for any damage Plaintiff Ogannes attributes to the Underlying Action. (See Mot., p. 11.)

Such evidence sanctions are overbroad because they restrict wholesale Plaintiff’s ability to tie Defendant Kavoukjian to any liability that GreenEden had in instituting the Underlying Action or to prove vital elements of malicious prosecution—probable cause, malice, and damages – without tying the evidence sanctions to the prejudice suffered as a result of the discovery not received.

Evidence sanctions are thus DENIED.

III. Monetary Sanctions

The Court also DENIES monetary sanctions.

To the extent that sanctions are sought based on the merit of terminating, issue, or evidence sanctions, such sanctions have been denied and cannot support the requested monetary sanctions.

To the extent that Defendant Kavoukjian argues that the supplemental discovery is unresponsive, the Court finds that the supplemental responses are facially sufficient and should have been challenged in a motion to compel further responses if Defendant felt there was additional information that should have been compelled.

The Court further notes that the 316-page PDF of Defendant’s Separate Statement in this case is overlong and violates the California Rules of Court, rule 3.1345 in numerous ways. The first 12 pages are simply argument and thereby an extension of the brief, violating the purpose both of the page limits for motions and the utility of a separate statement to set forth in one document the requests, responses, and reasons to compel additional information or issue sanctions. It attaches various documents such as notices of ruling and meet and confer correspondence that should have been attached to the attorney’s declaration. Most significantly, Defendant’s brief fails to set forth the real nature of the problems with the supplemental responses, instead referring the Court to the correspondence and the separate statement for the “detail.” (Memorandum at page 4.) That does not fulfill counsel’s duty of explaining the inadequacies to the Court, rather than asking the Court to scroll through the over 300 page long document to see what the purported deficiencies are. 

Conclusion

Defendant Armen Kavoukjian’s Motion for Terminating Sanctions, or, in the Alternative, for Evidentiary, Issue and Monetary Sanctions Against Plaintiff, Bagrat Ogannes of $10,728.16 is DENIED.