Judge: Armen Tamzarian, Case: BC682157, Date: 2023-01-27 Tentative Ruling

Case Number: BC682157    Hearing Date: January 27, 2023    Dept: 52

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

On January 27, 2023, the court held a hearing on the following matters:

1. Defendant/cross-complainant Starr Indemnity and Liability Company’s motion for terminating and monetary sanctions;

2-4. Plaintiffs/cross-defendants’ counsel Tesser Grossman LLP’s motions to be relived as counsel for plaintiffs Zoriall, LLC, Anne Kihagi, and Christina Mwangi;

5. Plaintiffs’ motion to continue trial;

6. Defendant’s motion to strike Zoriall, LLC’s pleadings; and

7. Defendant’s motion to sever trial.

DEFENDANT’S MOTION FOR SANCTIONS

Defendant/cross-complainant Starr Indemnity and Liability Company (Starr) moves for terminating and further monetary sanctions against plaintiffs.

When a party fails to obey an order compelling further discovery responses or attendance at deposition, “the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction.”  (CCP § 2025.450(h) [depositions]; § 2030.300(e) [interrogatories]; § 2031.300(c) [requests for production]; § 2033.290(e) [requests for admission].) 

Discovery sanctions should be imposed incrementally, “starting with monetary sanctions and ending with the ultimate sanction of termination.”  (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.)  “[A] terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective.”  (Ibid.)  Terminating sanctions are  “ ‘ordinarily a drastic measure which should be employed with caution.’ ”  (McArthur v. Bockman (1989) 208 Cal.App.3d 1076, 1080.)  Appropriate sanctions are those “such as are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks, but [not] which are designed not to accomplish the objects of discovery but to impose punishment.”  (Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 488.)

After the prior hearing on this motion, the court found that plaintiffs violated three court orders compelling discovery.  (Dec. 12, 2022, minute order, pp. 1-2.)  The court continued the hearing to permit plaintiffs another chance to comply with the orders.

The court’s order resulted in significant progress.  Plaintiffs served lengthy responses to written discovery.  Plaintiff Christina Mwangi also testified at her deposition.  Starr objects the written discovery responses are selective and incomplete and argues plaintiffs obstructed the deposition.  Starr does not show that any deficiency was egregious enough to warrant terminating sanctions.  

Plaintiff Anne Kihagi (as an individual and as Zoriall LLC’s person most knowledgeable) failed to appear for deposition on January 9 and 10 without first serving a valid objection.  She states she was ill and could not testify.  Three times (January 16, 18, and 23) Kihagi offered other dates for the depositions.  In response, Starr did not attempt to schedule the depositions.  Starr instead replied that it would continue to seek terminating sanctions. 

Kihagi made questionable excuses for not testifying on January 9 and 10.  That does not, however, justify Starr giving up on taking plaintiffs’ depositions.  Discovery sanctions are intended to accomplish the objects of discovery, not to punish a party who misuses discovery.  Starr has tried to win the case by default instead of conducting the discovery it wants.

The court will not grant terminating sanctions so long as Starr refuses to cooperate in good faith to complete the outstanding discovery.  The court will therefore continue this motion to give plaintiffs further time to comply with their discovery obligations. 

TESSER GROSSMAN LLP’S MOTIONS TO BE RELIEVED AS COUNSEL

Plaintiffs’ counsel of record, Tesser Grossman LLP, moves to be relieved as counsel for the three plaintiffs.  “To protect the best interests of the client, a trial court should have broad discretion in allowing attorneys to withdraw.”  (Estate of Falco (1987) 188 Cal.App.3d 1004, 1014.)  Factors supporting withdrawal include when “the relationship between” attorney and client “ha[s] completely broken down.”  (Ibid.)

The complete breakdown in their relationship with their clients justifies Tesser Grossman’s withdrawal.  Plaintiffs opposed these motions through attorney Karen Y. Uchiyama, who specially appeared for that purpose.  The opposition blames Tesser Grossman for plaintiffs’ disobedience of the court’s discovery orders.  (Opp., pp. 5, 7.)  The opposition further states, “Two attorneys have already tentatively agreed to substitute into the case,” including Uchiyama, if the motions to be relieved are granted and the trial is continued.  (Opp., p. 7.) 

That plaintiffs retained a new attorney (at least for the purpose of opposing these motions) who sharply criticizes Tesser Grossman’s representation illustrates the complete breakdown in the attorney-client relationship.  They are at odds.  Their relationship is irreparably broken.  Tesser Grossman does not want to represent plaintiffs, and plaintiffs do not believe Tesser Grossman has adequately represented them.  It is not in plaintiffs’ best interests for Tesser Grossman to continue representing them.

Tesser Grossman LLP’s motions to be relieved as counsel for plaintiffs Zoriall, LLC, Anne Kihagi, and Christina Mwangi are granted. 

PLAINTIFFS’ MOTION TO CONTINUE TRIAL

Plaintiffs show good cause for a brief trial continuance.  The court is granting Tesser Grossman’s motions to be relieved.  “The substitution of trial counsel” may indicate good cause for a continuance when “the substitution is required in the interests of justice.”  (Cal. Rules of Court, rule 3.1332(c)(4).)  Substitution (or, at minimum, withdrawal) is required in the interests of justice.  Beginning the trial on February 15, less than three weeks after granting Tesser Grossman’s motions to be relieved as counsel, would prejudice plaintiffs.  A continuance is necessary to avoid that prejudice.  Plaintiffs need more time to prepare for trial. 

Plaintiffs’ motion to continue trial is granted.

STARR’S MOTION TO STRIKE ZORIALL, LLC’S PLEADINGS

Defendant/cross-complainant Starr Indemnity and Liability Company moves to strike plaintiff/cross-defendant Zoriall, LLC’s first amended complaint and Zoriall, LLC’s answer to Starr’s first amended cross-complaint. 

The basis for Starr’s motion is that Zoriall was not represented by an attorney.  Entities must be represented by attorneys, and courts may strike pleadings by unrepresented entities.  (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1149.)  Courts should “treat a corporation’s failure to be represented by an attorney as a defect that may be corrected, on such terms as are just in the sound discretion of the court.  First and foremost, this approach honors the cornerstone jurisprudential policies that, in furtherance of justice, complaints are to be liberally construed [citation] and disputes should be resolved on their merits.”  (Ibid.)

Zoriall, LLC was unrepresented when Starr filed this motion to strike.  Zoriall then retained Tesser Grossman LLP.  The court now grants Tesser Grossman’s motion to be relieved as counsel for Zoriall, LLC—leaving it unrepresented again.  But the court is also continuing the trial.  In the opposition to the motions to be relieved, attorney Uchiyama stated new attorneys have tentatively agreed to represent Zoriall, LLC.  The court finds it is in the interest of justice to permit Zoriall additional time to retain new counsel. 

Starr Indemnity and Liability Company’s motion to strike is denied.

MOTION TO SEVER TRIAL

Starr moves to sever the trial into four phases.  When plaintiffs initially opposed this motion in July 2022 (when they were represented by Abir Cohen Treyzon Salo, LLP), they agreed the trial should be severed but objected to the details.  The court is continuing the trial to avoid prejudice to plaintiffs after granting Tesser Grossman LLP’s motions to be relieved as counsel.  Plaintiffs’ new counsel (or the plaintiffs without representation) may have different ideas on how the trial should be conducted.  The court exercises its discretion to continue this motion. 

DISPOSITION

            Tesser Grossman LLP’s motions to be relieved as counsel for plaintiffs are granted.  This order will take effect upon Tesser Grossman LLP filing proof of service of the signed order on plaintiffs.    

            Defendant/cross-complainant Starr Indemnity and Liability Company’s motion to strike Zoriall, LLC’s pleadings is denied. 

            Plaintiffs/cross-defendants Zoriall, LLC, Anne Kihagi, and Christina Mwangi’s motion to continue trial is granted.  The court hereby continues the final status conference from January 30, 2023, to March 20, 2023, at 9:00 a.m.  The court hereby continues the trial from February 15, 2023, to April 5, 2023, at 10:00 a.m.  The court does not reopen discovery, though Starr Indemnity and Liability Company may complete plaintiffs’ depositions. 

            Defendant/cross-complainant Starr Indemnity and Liability Company’s motion for terminating and monetary sanctions is hereby continued to February 27, 2023, at 9:00 a.m.  Defendant/cross-complainant Starr Indemnity and Liability Company’s motion to sever trial is hereby continued to February 27, 2023, at 9:00 a.m.  The parties shall file any further papers by the deadlines set forth in Code of Civil Procedure section 1005, subdivision (b). 

                                                            IT IS SO ORDERED

Date:   January 27, 2023

_______________________________________

Armen Tamzarian

JUDGE OF THE SUPERIOR COURT