Judge: Anne Richardson, Case: BC701226, Date: 2023-09-20 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: BC701226    Hearing Date: March 26, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

I. Background

A. Pleadings

Plaintiff/Cross-Defendant St. Andrew’s Pharmacy, LLC—owned by Elite 126 Management, LLC and Elite’s owner, Mr. Cobby Pourtavosi—sued Defendants St. Andrew’s Green, a Cooperative Corporation (also a Cross-Complainant), Kathy Smith aka Kandace Simplis (also a Cross-Defendant), and Does 1-50 pursuant to a December 22, 2020 Complaint alleging claims of (1) Violation of Penal Code section 496, (2) Conversion, (3) Specific Recovery of Personal Property (Replevin), (4) Violation of Unfair Competition Law, Bus. & Prof. Code, § 17200, et seq., (5) Common Counts, and (6) Declaratory Relief.

Briefly, the claims arose from allegations that Defendants acted in such a way as to deprive Plaintiff of its City of Los Angeles-issued medical marijuana license.

In turn, St. Andrew’s Green, a Cooperative Corporation, and Arnold Abramyan sued St. Andrew’s Pharmacy, LLC (hereafter Plaintiff), Kathy Smith (hereafter Defendant Smith), Elite Management, LLC, Cobby Pourtavousi, Andre Khalili, Roe 1 Manu Khalili, and Roes 2 through 200 pursuant to a December 29, 2020 First Amended Cross-Complaint alleging claims of (1) Violation of Penal Code section 496, (2) Conversion, (3) Unfair Business Practices, (4) Implied Indemnity, (5) Comparative Indemnity, (6) Declaratory Relief, and (7) Declaratory Relief.

B. Trial, Judgment, and Appeal

Trial was held in this action on September 2, 6-8, 14, 16, 19, and 22, 2022.

On December 14, 2022, the Court—then presided over by Judge David Sotelo (Ret.)—issued a final statement of decision.

On November 21, 2023, St. Andrew’s Pharmacy filed a motion for fees and costs in the trial court proceedings.

On January 24, 2023, the Court entered judgment in this action in conformity with the final statement of decision. The judgment adjudged that “Plaintiff/Cross-Defendant St. Andrew’s Pharmacy, LLC and Cross-Defendant Cobby Pourtavosi shall have judgment in their favor against Defendants/Cross-Complainants St. Andrew’s Green, a Cooperative Corporation and Arnold Abramyan and Defendant Kathy Smith.” Important to this analysis, the Court adjudged Plaintiff as having “judgment against Defendant Kathy Smith on its cause of action for violation of Penal Code section 496.” Moreover, the Court entitled Plaintiff to costs against Defendant Smith, Defendant/Cross-Complainant St. Andrew’s Green, a Cooperative Corporation, and Cross-Defendant Arnold Abramyan.

On March 23, 2023, Defendant Smith, in pro per, appealed the judgment after court trial.

On March 28, 2023, Plaintiff filed and served a notice of entry of judgment or order.

On January 12, 2024, the court of appeal issued its opinion and remittitur, noting that the parties dismissed the appeal by stipulation.

On January 26, 2024, the court entered an amended judgment reflecting the award of fees and costs for St. Andrew’s Pharmacy made by the Court on November 21, 2023.

C. Motion Before the Court

Prior to the dismissal of the appeal and entry of the amended judgment, on January 9, 2024, St. Andrew’s Pharmacy filed (1) a motion for an order compelling responses to special interrogatories served by St. Andrew’s Pharmacy on Defendant/judgment debtor Kathy Smith and for an award of sanctions against Kathy Smith to be added to an judgment, and (2) a motion for an order compelling responses to production requests served by St. Andrew’s Pharmacy on Kathy Smith and for an award of sanctions against Kathy Smith to be added to an judgment.

The motion was served on Kathy Smith—in pro per—via email and mail that same day, as well as by mail to counsel for Defendant/Cross-Complainant, St. Andrew’s Green via email.

No opposition, reply, or notice of non-opposition appear in the record.

St. Andrew’s Pharmacy’s motion is now before the Court.

II. Motion to Compel Initial Discovery Responses and for Sanctions

A. Motion to Compel Interrogatory and Production Responses: GRANTED.

1. Legal Standard

The provisions in California Code of Civil Procedure section 2030.010 et seq. relating to the enforcement of interrogatories served in a civil action apply when a judgment creditor propounds interrogatories on a judgment debtor seeking information to aid in the enforcement of the money judgment.¿ (See Code Civ. Proc., § 708.020.)

Similarly, the provisions in California Code of Civil Procedure section 2031.010 et seq. to the enforcement of requests for production served in a civil action apply when a judgment creditor propounds a request for production on a judgment debtor seeking information to aid in the enforcement of the money judgment.¿ (See Code Civ. Proc., § 708.030.)

A motion to compel an initial response can be made on the ground that a party did not serve a timely response to interrogatories or a demand to produce. (Code Civ. Proc., §§ 2030.290, subd. (a) [interrogatories], 2031.300, subd. (a) [demand to produce]; see Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 404 (Sinaiko).) To establish this ground, a movant must show:

(1) Proper service (see Code Civ. Proc., §§ 2030.080, subd. (a) [interrogatories], 2031.040 [demand to produce]);

(2) Expiration of the deadline for the initial response 30 days after service or on date agreed to by parties (see Code Civ. Proc., §§ 2030.260, subds. (a), (b) [interrogatories], 2031.260, subds. (a), (b) [demand to produce]); and

(3) No timely response (see Code Civ. Proc., §§ 2030.290 [interrogatories], 2031.300 [demand to produce]).

A court must deny a motion to compel initial discovery where the discovery sought is outside the scope of discovery. (See CBS, Inc. v. Superior Court (1968) 263 Cal.App.2d 12, 19; see also Code. Civ. Proc., § 2017.010 [scope of discovery].)

2. Analysis

a. Parties’ Arguments

In its motion, St. Andrew’s Pharmacy argues as follows. On November 16, 2023, St. Andrew’s Green served interrogatories and production requests on Kathy Smith, which were solely emailed to Kathy Smith. Kathy Smith failed to respond to these requests by the statutory timeframe ending on December 21, 2023, which prompted St. Andrew’s Pharmacy to file the motions before the Court. The discovery sought by St. Andrew’s Pharmacy is discoverable because it relates to the financial condition of Kathy Smith, which is relevant to revealing assets that she might used to pay the judgment against her in favor of St. Andrew’s Pharmacy. (See Motions, pp. 2-5.)

No opposition, reply, or notice of non-opposition appear in the record.

b. Court’s Determination

After review, the Court determines that an order compelling responses from Kathy Smith is proper here.

First, St. Andrew’s Pharmacy presents evidence showing that it served the interrogatories and production requests on Kathy Smith via email on November 16, 2023. (Motions, Sacuzzo Decls. Ex. A, Proof of Service.)

Second, St. Andrew’s Pharmacy argues that the deadline to respond to the interrogatories and production requests expired as of December 21, 2023. (Motions, Sacuzzo Decls., ¶¶ 2.)

Third, St. Andrew’s Pharmacy presents evidence showing that it has failed to received responses to the interrogatories and production requests from Kathy Smith. (Motions, Sacuzzo Decl., ¶¶ 2.)

Fourth, review of the discovery sought shows that it relates to Kathy Smith’s financial condition and sources of assets that can satisfy the judgment in favor of St. Andrew’s Pharmacy. (Motions, Sacuzzo Decls. Ex. A; Code Civ. Proc., § 2017.010.)

Fifth, the Court last notes that any objections to the discovery requests here have been waived as a result of Kathy Smith’s nonresponse. (Code Civ. Proc., §§ 2030.290, subd. (a), 2031.300, subd. (a).)

St. Andrew’s Pharmacy’s motion is thus GRANTED as to an order compelling responses from Kathy Smith to St. Andrew’s Pharmacy’s interrogatories and production requests.

B. Request for Sanctions: GRANTED, in part.

1. Legal Standard

The provisions in California Code of Civil Procedure section 2030.010 et seq. relating to the enforcement of interrogatories served in a civil action apply when a judgment creditor propounds interrogatories on a judgment debtor seeking information to aid in the enforcement of the money judgment.¿ (See Code Civ. Proc., § 708.020.)

Similarly, the provisions in California Code of Civil Procedure section 2031.010 et seq. to the enforcement of requests for production served in a civil action apply when a judgment creditor propounds a request for production on a judgment debtor seeking information to aid in the enforcement of the money judgment.¿ (See Code Civ. Proc., § 708.030.)

The Court must impose monetary sanctions against anyone—party, nonparty, or attorney—who unsuccessfully makes or opposes a motion to compel initial responses to interrogatories or production requests, unless it finds that the person to be sanctioned acted with substantial justification or other circumstances make the imposition of the sanctions unjust. (See Code Civ. Proc., §§ 2030.290, subd. (c) [interrogatories], 2031.300, subd. (c) [demand to produce]; see Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants, supra, 148 Cal.App.4th at p. 404 [interrogatories and demand to produce].)

The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed. (Cal. Rules of Court, rule 3.1348, subd. (a).)

2. Analysis

a. Parties’ Arguments

In its motion, St. Andrew’s Pharmacy argues that sanctions are warranted against Kathy Smith for failing to respond to an authorized method of discovery seeking relevant information regarding Smith’s assets. St. Andrew’s Pharmacy requests $1,185 in sanctions for each motion, for a total of $2,370, as well as a court order to the effect that failure to comply with this order could result in a finding of contempt and the recommendation that the court of appeal dismiss the now-dismissed appeal by Kathy Smith. St. Andrew’s Pharmacy also requests that any additional sanctions be added to the judgment. (Motions, pp. 4-5.)

No opposition, reply, or notice of non-opposition appear in the record.

b. Court’s Determination

The Court finds that sanctions are warranted here but only in part.

First, the Court notes that sanctions are only sought against Kathy Smith and no one else, which logically follows her in pro per status at of the time the discovery requests at issue were served on her.

Second, the Court determines that Kathy Smith’s failure to respond to St. Andrew’s Pharmacy’s interrogatories and production requests despite service of the same amounts to a failure to respond to an authorized method of discovery, supporting sanctions. (Code Civ. Proc., §§ 2023.010, subd. (d), 2023.030, subd. (a).)

Third, the Court determines that because no opposition is before the Court, the Court lacks grounds to determine that sanctions are without substantial justification or are unjust.

Fourth, the Court determines that sanctions are appropriate in the total amount of $1,920, comprised of a reasonable $450 per hour fee rate times 1.5 hours reasonably spent on each motion and one hour (not two) to be reasonably spent attending this hearing on both motions, plus a $60 motion filing fee for each motion. (Motions, Sacuzzo Decls., ¶¶ 5.)

Fifth, the Court denies the additional requests by St. Andrew’s Pharmacy, i.e., the inclusion of admonishments in this order relating to contempt and dismissal of Kathy Smith’s now-dismissed appeal, and the addition of any sanctions to the judgment as a matter of course. The Court will address any noncompliance with its orders after, not before that noncompliance occurs. Parties are assumed to be aware of the legal consequences of their conduct, and in any event, lack of knowledge does not preclude the Court from imposing any appropriate legal consequences. The appeal dismissal admonishment is not necessary where the appeal has since been dismissed. And for the amendment judgment in this action to be modified, St. Andrew’s Pharmacy needs to file a written request or present an oral request for that relief, along with a proposed second amended judgment.

Sanctions are thus GRANTED, in part, in the amount of $1,920.

III. Conclusion

A. Motion to Compel Interrogatory Responses

Plaintiff/Cross-Defendant St. Andrew’s Pharmacy, LLC’s Motion for Order Compelling Responses to Judgment Creditor Special Interrogatories is GRANTED.

Defendant/Cross-Defendant Kathy Smith is ORDERED to serve code-compliant responses, without objections, within 15 days of service of this order.

B. Motion to Compel Production

Plaintiff/Cross-Defendant St. Andrew’s Pharmacy, LLC’s Motion for Order Compelling Responses to Judgment Creditor Requests for Production of Documents is GRANTED.

Defendant/Cross-Defendant Kathy Smith is ORDERED to serve code-compliant responses and/or production, as applicable, without objections, within 15 days of service of this order.

C. Requests for Sanctions

Plaintiff/Cross-Defendant St. Andrew’s Pharmacy, LLC’s requests for sanctions are GRANTED in part in the total amount of $1,920.

Any request by Plaintiff/Cross-Defendant St. Andrew’s Pharmacy, LLC that these monies be added to the operative amended judgment must be in the form a proposed second amended judgment.

The Court otherwise declines to add Plaintiff/Cross-Defendant St. Andrew’s Pharmacy, LLC’s recommended admonishments to the sanctions order.