Judge Ashfaq G. Chowdhury, Case Number: 21GDCV00018, Date: 2024-11-14 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 21GDCV00018, Date: 2024-11-14 Tentative Ruling

Case Number: 21GDCV00018 Hearing Date: November 14, 2024 Dept: E

Hearing Date: 11/14/2024 – 8:30am
Case No. 21GDCV00018
Trial Date: 12/09/2024
Case Name: PETER OLIVER v. KARIM BOUMAJDI aka KEVIN BOUMAJDI; TESLA RESELLER GROUP, INC., a California corporation; and DOES 1-20 inclusive

2 TENTATIVE RULINGS – COMPEL RESPONSES

BACKGROUND

Plaintiff, Peter Oliver, filed the instant action on 1/6/2021, against Defendants, Karim Boumajdi aka Kevin Boumajdi (Boumajdi), and Tesla Reseller Group.

The caption of the Complaint lists the causes of action as: (1) Breach of Contract, (2) Common Counts, and (3) Conversion and Constructive Trust.

This dispute allegedly arose from Plaintiff investing in Tesla Reseller (wholly owned by Boumajdi), wherein Tesla Reseller was to sell used Tesla vehicles, and in exchange for Plaintiff’s investment, Plaintiff was to receive ownership interest in Tesla Reseller. (See Compl. ¶ 5.)

On 6/2/2021, judgment by default was entered against Defendants.

On 3/24/2023, this Court vacated the default judgment that was entered against Defendants.

Along with the two motions to compel on calendar for 11/14/2024, two motions to be relieved as counsel are also scheduled for 11/14/2024. Trial is set for 12/9/2024.

MOTION 1

Moving Party: Plaintiff, Peter Oliver

Responding Party: No response by Defendant Karim Boumajdi aka Kevin Boumajdi (Boumajdi)

Moving Papers: Notice/Motion; Proposed Order

Opposition Papers: No Opposition by Defendant

Reply: No Reply

RELIEF REQUESTED¿
“Plaintiff PETER OLIVER ("Plaintiff "), hereby moves the Court for an order compelling Defendant KARIM BOUMAJDI aka KEVIN BOUMAJDI ("Defendant") to respond to Plaintiff's Request for Production of Documents without objection as set forth herein. Defendant failed to respond in any manner whatsoever to the Request for Production of Documents despite further request of Plaintiff and despite Plaintiff’s meet and confer attempts with Defendant’s counsel, all following Defendant’s failure to execute an agreed upon Stipulation to for Entry of Judgment (with an accompanying agreement to a moratorium on serving responses to discovery while settlement and stipulation to judgment was pending). (See Declaration of Michael N. Berke).

This Motion is made pursuant to CCP §2031.300, et seq. on the grounds that Defendant has failed to submit any responses whatsoever to the most basic and relevant discovery to this action, all in an apparent attempt to circumvent the discovery process following his failure to execute the previously agreed upon Stipulation to for Entry of Judgment and his disregard and abuse for the moratorium on discovery responses. With a pending trial date of December 9, 2024, rapidly approaching, Defendant should be ordered to immediately comply with the discovery responses and documents, without objection. Further, Plaintiff seeks a request for monetary sanctions against Defendant in the sum of $3,860.00 for attorney fees and costs incurred in bringing forth this motion.

This Motion is based upon all pleadings, papers, and records filed in this action, this Notice of Motion, the Memorandum of Points and Authorities, the Declaration of Michael N. Berke and any further oral and/or documentary evidence that may be presented at the hearing.

The Attorneys’ of record are to meet and confer in a phone call before the hearing. Mr. Woo may appear remote by LA Court Connect link.”

(Pl. Mot. p. 1-2.)

PROCEDURAL ANALYSIS
16/21 Day Lapse (CCP § 12c and § 1005(b): No – “Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing....However…if the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 16-day period of notice before the hearing shall be increased by two calendar days.” (See CCP § 1005(b).)

Here, 16 court days before the November 14, 2024 hearing would be October, 22, 2024. The moving papers were served via mail and email/electronic transmission on October 22, 2024. Two calendar days should have been added to October 22, 2024; however, Plaintiff did not do so. Plaintiff’s moving papers are untimely.

Proof of Service Timely Filed (CRC, Rule 3.1300): Ok
Correct Address (CCP § 1013, § 1013a, §1013b): Ok

LEGAL STANDARD – COMPEL RESPONSES, INSPECTION DEMANDS
Within 30 days after service of a demand for inspection, copying, testing, or sampling, the party to whom the demand is directed shall serve the original of the response to it on the party making the demand, and a copy of the response on all other parties who have appeared in the action, unless on motion of the party making the demand, the court has shortened the time for response, or unless on motion of the party to whom the demand has been directed, the court has extended the time for response. (CCP § 2031.260(a).)

If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the party making the demand may move for an order compelling response to the demand. (CCP § 2031.300(b).)

If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the party to whom the demand for inspection, copying, testing, or sampling is directed waives any objection to the demand, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). (CCP § 2031.300(a).) “The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied: (1) The party has subsequently served a response that is in substantial compliance with Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280. (2) The party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.” (CCP § 2031.300(a)(1)-(2).)

Unlike a motion to compel further responses, a motion to compel responses is not subject to a 45-day time limit, and the propounding party does not have to demonstrate either good cause or that it satisfied a “meet and confer” requirement. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4^th 390, 404 citing Weil and Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2006) ¶¶8:1137 to 8:1144, pp. 8F-59 to 8F-60, ¶¶ 8:1483 to 8:1489, pp. 8H-29 to hH-30 (Weil & Brown).)

SUBSTANTIVE ANALYSIS
Plaintiff’s Request for Production of Documents, Set One, was served on Defendant, Boumajdi, on either July 6, 2023, or July 26, 2023. The Court notes there is uncertainty as to when the instant discovery was served on Defendant because Plaintiff’s proof of service for the instant discovery lists that it was served on July 6, 2023; however, Plaintiff’s motion, and Plaintiff’s counsel’s declaration, states that the instant discovery was served on July 26, 2023. (See Mot. p. 3, Berke Decl. ¶ 2, & Ex. A.)

Plaintiff’s counsel, Michael N. Berke, states that no responses have been served to the instant discovery request, as of 10/22/2024. (See Berke Decl. ¶ 2.)

Therefore, here, it is clear that Defendant did not serve timely responses.

Typically, the Court would compel responses because of the lack of timely responses; however, the Court would like Plaintiff’s counsel to address the potential issue that the Court spotted on page four of Plaintiff’s motion.

Plaintiff’s motion stated:

Upon service of the discovery, Defendant’s responses were accordingly due by no later than August 28, 2023. Following the service of the discovery, Plaintiff’s counsel engaged in settlement discussions with Defendant’s counsel Mr. Woo by which counsel agreed to a moratorium on serving responses to discovery while the parties discussed settlement. Notwithstanding the fact that Defendant Boumajdi lives in both Morocco and Switzerland while Plaintiff resides in New Zealand and that the communications between counsel and the parties has been difficult, the parties agreed to stipulate to judgment on August 14, 2024. Counsel for Plaintiff thereafter sent the Stipulation to Defendant’s counsel Mr. Woo the next day in Word format, with Mr. Woo stating that he had no objection to the proposed Stipulation.

The Stipulation in pertinent part provided:

“Plaintiff shall enter Judgment against Defendants KARIM BOUMAJDI aka KEVIN BOUMAJDI and TESLA RESELLER GROUP, INC., a California corporation, in the amount of $226,000.00 forthwith.”

Thereafter, on October 3, 2024, Plaintiff’s counsel was informed by Defendants’ counsel Mr. Woo that despite his forwarding the Stipulation to his client for signature, he was unable to contact Mr. Boumajdi and has been unable to obtain his signature on the Stipulation for Entry of Judgment. (Declaration of Michael N. Berke).

(Pl. Mot. p. 4.)

The Court would like Plaintiff’s counsel to address the fact that Plaintiff’s motion stated, “Following the service of the discovery, Plaintiff’s counsel engaged in settlement discussions with Defendant’s counsel Mr. Woo by which counsel agreed to a moratorium on serving responses to discovery while the parties discussed settlement.” (Pl. Mot. p. 4.)

The Court would like Plaintiff’s counsel to discuss the issue mentioned above because it appears as if Plaintiff’s counsel is admitting that the parties entered into a moratorium on serving discovery responses. Therefore, maybe Defendant did not serve responses because, as Plaintiff’s motion stated, the parties agreed to a moratorium on serving discovery responses. At the hearing, Plaintiff’s counsel should come forward with the alleged agreement/moratorium between the parties, or if this is not a signed document, Plaintiff’s counsel should come forward with whatever documents they have or explain what this moratorium was/is.

Further, the Court fails to see what Defendants not signing the Stipulation for Entry of Judgment has to do with this motion. The fact that the parties have not come to a resolution on how they want to resolve this matter via stipulation is not before this Court.

TENTATIVE RULING MOTION 1
Generally speaking, the Court would typically grant a motion like this because Defendant did not serve timely responses to the instant discovery request.

However, the instant motion is untimely under CCP § 1005(b) and can be denied on those grounds alone.

Further, as discussed above, the Court would like Plaintiff’s counsel to address the issue the Court pointed out with respect to the discovery moratorium that the parties allegedly agreed to.

Further, the Court would like Plaintiff to discuss any potential discovery cutoff issues since the trial date is currently set for 12/9/2024.

As stated in CCP § 2024.020:

(a) Except as otherwise provided in this chapter, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.

(b) Except as provided in Section 2024.050, a continuance or postponement of the trial date does not operate to reopen discovery proceedings.

(CCP § 2024.020(a)-(b).)

Further, the Court notes that it appears that Defendants’ counsel appears to have two motions to be relieved as counsel scheduled for 11/14/2024, which is the day that the instant motion is scheduled to be heard.

The Court to hear argument.

Sanctions

In relevant part, 2031.300(c) states as follows:

Except as provided in subdivision (d), the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection, copying, testing, or sampling, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

(CCP §2031.300(c).)

“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(a).)

Plaintiff’s counsel seeks a request for monetary sanctions against Defendant in the sum of $3,860.00 for attorney fees and costs incurred in bringing forth this motion.

The Berke Declaration requests sanctions as follows:

I have spent 4.5 hours preparing the motion, i.e., including legal research and the drafting the motion and declaration along with a proposed order. My regular billing rate is $400.00 per hour. I estimate that I will spend 2.0 hours reviewing any opposition and preparing a reply to that opposition. Appearance time, arguing the motion and preparing a notice of ruling will require another 3.0 hours. The total hours expended for this motion is estimated at 9.5 hours at $400.00 per hour which equals $3,800.00 plus the filing fee of $60.00 for the filing of this Motion, which aggregate a total of $3,860.00 in sanctions which are appropriate to be ordered against Defendant Boumajdi.

(Berke Decl. ¶ 8.)

The Court points out that the Berke declaration requested 2 hours reviewing opposition and preparing a reply; however, no opposition was submitted, and no reply has been submitted.

MOTION 2

Moving Party: Plaintiff, Peter Oliver

Responding Party: No response by Defendant Karim Boumajdi aka Kevin Boumajdi (Boumajdi)

Moving Papers: Notice/Motion; Proposed Order

Opposition Papers: No Opposition by Defendant

Reply: No Reply

RELIEF REQUESTED¿
“Plaintiff PETER OLIVER ("Plaintiff "), hereby moves the Court for an order compelling Defendant KARIM BOUMAJDI aka KEVIN BOUMAJDI ("Defendant") to respond to Plaintiff's Form Interrogatories without objection as set forth herein. Defendant failed to respond in any manner whatsoever to the Form Interrogatories despite further request of Plaintiff and despite Plaintiff’s meet and confer attempts with Defendant’s counsel following, all following Defendant’s failure to execute an agreed upon Stipulation to for Entry of Judgment (with an accompanying agreement to a moratorium on serving responses to discovery while settlement and stipulation to judgment was pending). (See Declaration of Michael N. Berke).

This Motion is made pursuant to CCP §2030.290, et seq. on the grounds that Defendant has failed to submit any responses whatsoever to the most basic and relevant discovery to this action, all in an apparent attempt to circumvent the discovery process following his failure to execute the previously agreed upon Stipulation to for Entry of Judgment and his disregard and abuse for the moratorium on discovery responses. With a pending trial date of December 9, 2024, rapidly approaching, Defendant should be ordered to immediately comply with the discovery responses and documents, without objection. Further, Plaintiff seeks a request for monetary sanctions against Defendant in the sum of $3,860.00 for attorney fees and costs incurred in bringing forth this motion.

The Attorneys’ of record are to meet and confer in a phone call before the hearing. Mr. Woo may appear remote by LA Court Connect link.

(Pl. Mot. p. 1-2.)

Here, 16 court days before the November 14, 2024 hearing would be October, 22, 2024. The moving papers were served via mail and email/electronic transmission on October 22, 2024. Two calendar days should have been added to October 22, 2024; however, moving Plaintiff did not do so. Plaintiff’s moving papers are untimely.

Proof of Service Timely Filed (CRC, Rule 3.1300): Ok
Correct Address (CCP § 1013, § 1013a, §1013b): Ok

LEGAL STANDARD – COMPEL RESPONSES, INTERROGATORIES
Within 30 days after service of interrogatories, the party to whom the interrogatories are propounded shall serve the original of the response to them on the propounding party, unless on motion of the propounding party the court has shortened the time for response, or unless on motion of the responding party the court has extended the time for response. (CCP § 2030.260(a).)

If a party to whom interrogatories are directed fails to serve a timely response, the party propounding the interrogatories may move for an order compelling response to the interrogatories. (CCP § 2030.290(b).)

“The party to whom the interrogatories are directed waives any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied: (1) The party has subsequently served a response that is in substantial compliance with Sections 2030.210, 2030.220, 2030.230, and 2030.240. (2) The party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.” (CCP § 2030.290(a).)

SUBSTANTIVE ANALYSIS
Plaintiff’s Form Interrogatories, Set One, were served on Defendant, Boumajdi, on either July 6, 2023, or July 26, 2023. The Court notes there is uncertainty as to when the instant discovery was served on Defendant because the proof of service for the instant discovery lists that it was served on July 6, 2023; however, Plaintiff’s motion, and Plaintiff’s counsel’s declaration, states that the instant discovery was served on July 26, 2023. (See Mot. p. 3, Berke Decl. ¶ 2, & Ex. A.)

Plaintiff’s counsel, Michael N. Berke, states that no responses have been served to the instant discovery request as of 10/22/2024. (See Berke Decl. ¶ 3.)

Therefore, here, it is clear that Defendant did not serve timely responses.

Plaintiff’s motion stated:

Notwithstanding the fact that Defendant Boumajdi lives in both Morocco and Switzerland while Plaintiff resides in New Zealand and that the communications between counsel and the parties has been difficult, the parties agreed to stipulate to judgment on August 14, 2024. Counsel for Plaintiff thereafter sent the Stipulation to Defendant’s counsel Mr. Woo the next day in Word format, with Mr. Woo stating that he had no objection to the proposed Stipulation.

The Stipulation in pertinent part provided:

“Plaintiff shall enter Judgment against Defendants KARIM BOUMAJDI aka KEVIN BOUMAJDI and TESLA RESELLER GROUP, INC., a California corporation, in the amount of $226,000.00 forthwith.”

(Pl. Mot. p. 4.)

TENTATIVE RULING MOTION 2
Generally speaking, the Court would typically grant a motion like this because Defendant did not serve timely responses to the instant discovery request.

However, the instant motion is untimely under CCP § 1005(b) and can be denied on those grounds alone.

Further, as discussed above, the Court would like Plaintiff’s counsel to address the issue the Court pointed out with respect to the discovery moratorium that the parties allegedly agreed to.

Further, the Court would like Plaintiff to discuss any potential discovery cutoff issues since the trial date is currently set for 12/9/2024.

As stated in CCP § 2024.020:

(b) Except as provided in Section 2024.050, a continuance or postponement of the trial date does not operate to reopen discovery proceedings.

(CCP § 2024.020(a)-(b).)

The Court to hear argument.

Sanctions
CCP § 2030.290 states in relevant part:

The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

(CCP §2030.290(c).)

Plaintiff’s counsel seeks a request for monetary sanctions against Defendant in the sum of $3,860.00 for attorney fees and costs incurred in bringing forth this motion.

The Berke Declaration requests sanctions as follows:

(Berke Decl. ¶ 8.)

The Court points out that the Berke declaration requested 2 hours reviewing opposition and preparing a reply; however, no opposition was submitted, and no reply has been submitted.