Judge: Audra Mori, Case: 19STCV10771, Date: 2023-01-26 Tentative Ruling

Case Number: 19STCV10771    Hearing Date: January 26, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Plaintiff Alexander Olshansky (“Plaintiff”) propounded request for production of documents (“RPDs”), set one, on Mikhail Cheban (“Defendant”) on August 19, 2022.  Plaintiff provides that Defendant served unverified responses October 4, 2022, and indicated verifications were to follow.[1]  Plaintiff asserts that to date, Defendant has not served verifications.  Plaintiff therefore seeks an order compelling Defendant to provide verifications to the outstanding discovery and to pay sanctions.

In opposition, Defendant’s counsel asserts that Defendant has been unable to verify the responses because he has been residing in Ukraine since 2018, which is currently at war.[2]  Defendant’s counsel further asserts that communication with his client has been limited and unreliable due to electricity and telecommunication interference in Ukraine.  He states that Defendant is aware of the discovery served on him and states he understands the gravity of this lawsuit but is dealing with an exigent world conflict that makes participation difficult. Defendant does not corroborate any of these statements with his own declaration.  Defendant contends that sanctions are unwarranted, and that he may move to stay the proceedings. 

In reply, Plaintiff contends that the truthfulness of Defendant’s claims is questionable because Defendant has submitted declarations in other actions stating that he has left Ukraine and currently resides in Hungary and Moldova.[3]  Plaintiff argues there is no explanation given for why Defendant can sign declarations at other times but cannot sign the subject discovery. 

            The Court understands the seriousness of the circumstances in Ukraine.  However, Defendant has not moved for a stay of the proceedings against him, and Defendant does not otherwise dispute that he has not served verifications for the RPDs.  Moreover, an unverified response is tantamount to no response at all.  (Melendrez v. Superior Court (2013) 215 Cal.App.4th 1343, 1348.)

            Therefore, Plaintiff’s motion is granted.  Plaintiff is ordered to serve verified responses to RPDs, set one, within thirty (30) days.  (CCP § 2031.300(a), (b).)

Sanctions are mandatory unless the one subject to sanctions acted with substantial justification or other circumstances make the imposition of sanctions unjust.  (CCP § 2031.300(c).)  In response to Defendant’s claim that he currently resides in Ukraine, Plaintiff submits signed declarations by Defendant stating he left Ukraine for Hungary in mid-April 2022.  The declarations, which are all signed by Defendant, raise serious questions as to Defendant’s claims that he cannot participate in the action because he is currently living in Ukraine. 

Plaintiff is awarded the requested 0.25 hours for preparing the form motion to compel and 0.25 hours for the reply and to appear at the hearing all at the reasonable rate of $200 per hour, for a total of $100 (0.5 hours x $200) in attorney fees.  Further, Plaintiff is awarded the motion filing fee of $60 as costs. 

Sanctions are sought and imposed against Defendant.  Defendant is ordered to pay sanctions to Plaintiff, by and through counsel of record, in the total amount of $160, within thirty (30) days.

            As a final note, Plaintiff reserved the hearing for the instant motion as a hearing on a Motion to Compel Further Responses.  However, Plaintiff is clearly not seeking to compel further responses, but rather seeking to compel initial responses.  Plaintiff should have reserved the motion as a hearing on a Motion to Compel Discovery (Not “Further Discovery”).  Failing to properly reserve a hearing for a motion to compel manipulates the Court Reservation System and unfairly jumps ahead of other litigants. 

Plaintiff’s Counsel is put on notice, and should instruct their staff, that it is inappropriate to intentionally reserve a hearing date for a different type of motion so that the motion can be heard sooner.  Plaintiff’s counsel is also put on notice that failure to properly reserve hearings in the future based on the type of motion being heard will result in the matter being taken off calendar. 

Plaintiff is ordered to give notice.   

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 26^th day of January 2023