Judge: Blaine K. Bowman, Case: 37-2021-00011291-CU-BC-NC, Date: 2023-10-06 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - October 05, 2023

10/06/2023  01:30:00 PM  N-31 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Blaine K. Bowman

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Civil - Unlimited  Breach of Contract/Warranty Discovery Hearing 37-2021-00011291-CU-BC-NC VRDO PLAZA PARTNERSHIP VS TH & SC ENTERPRISES LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Ruling on Motion for Terminating/Evidence Sanctions The Motion or Terminating/Evidence Sanctions and Monetary Sanctions brought by plaintiff VRDO Plaza Partnership (Plaintiff) is disposed as follows: --DENIED as to the request for terminating sanctions, --GRANTED as to the request for evidentiary sanctions, which shall consist of deeming the responses provided by defendants Tyler Kunz and Man Sze Kunz (collectively, the Kunz) and TH & SC Enterprises LLC (the LLC) (collectively, Defendants) as containing a statement that they will comply with the discovery demand, --GRANTED as to the request for monetary sanctions in the amount of $5,310.00.

The entirety of this Court's prior ruling on this matter is incorporated herein by reference. (See ROA 166.) The Court commends the parties for having met and conferred, in person, consistent with this Court's order to exchange the USB drive that was previously in dispute. Having resolved that issue, what remains is a request by Plaintiff for 'code compliant' discovery responses addressing whether or not Defendants 'will comply,' 'lack the ability to comply,' or 'object to compliance' with regard to the discovery at issue. (Code of Civil Procedure § 2031.210.) When this matter was previously on-calendar, there was an issue with regard to whether the motion (and the underlying discovery) had been properly served. The Court analyzed this issue and concluded that it had, but that various aspects of that service led to some confusion. As such, this Court exercised discretion and continued the matter to give the parties additional time to meet and confer to resolve the issue – even removing the prospect of monetary sanctions in light of the confusion over proper service. (See ROA 166.) However, this Court ordered that Defendants were to provide code-complaint responses about their ability to comply, and warned that a failure to do so may trigger a re-visiting of the issue of monetary sanctions: On the other hand, the Court does find it appropriate to order production of both (1) the video file at issue, and (2) the code-compliant responses about Defendants' ability to comply with the discovery demands.

And, in continuing this matter to a future hearing date, may revisit the monetary sanctions issue if there is further non-compliance with the Court order to meet and confer in-person and to produce the discovery items in question. (ROA 166, p. 7.) Both parties have filed Status Reports, with Plaintiff indicating that code-compliant responses still have not been provided, and with Defendant re-raising the service and notice issues that this Court previously Calendar No.: Event ID:  TENTATIVE RULINGS

3021413 CASE NUMBER: CASE TITLE:  VRDO PLAZA PARTNERSHIP VS TH & SC ENTERPRISES LLC [IMAGED]  37-2021-00011291-CU-BC-NC resolved rather than addressing the substance of the issue and complying with the requirement to provide statements about the ability to comply. For that failure, the Court concludes it is appropriate to re-visit the issue of monetary sanctions.

Plaintiff's initial motion sought terminating sanctions, as well as evidentiary and monetary sanctions.

Generally, under California law, 'lesser' sanctions are to be tried first, and terminating sanctions are 'last resort.' As such, the Court is not inclined to impose terminating sanctions, even in the face of failure to comply with a court order – at least at this stage. Nonetheless, Defendants having failed to provide a statement regarding their ability to comply, the Court will impose an evidentiary sanction and DEEM the fact of having provided responses (i.e. providing documents) is an admission that Defendants have, by their conduct, made an admission that they 'will comply' with the discovery code – a statement required under Code of Civil Procedure § 2031.210.

Because Defendants have failed to make this statement of their own accord, even after being granted additional time to do so once the service and notice issues were resolved, the Court further awards monetary sanctions in the full amount sought by Plaintiff, which was $5,310.00.

Accordingly, Defendants are ORDERED to pay monetary sanctions in the amount of $5,310.00 to plaintiff VRDO Plaza Partnership. Said monetary sanctions shall be sent to Attorney Brent Kupfer of Kupfer Legal at P.O. Box #371799, San Diego, California 92137 by no later than October 20, 2023.

If, prior to the hearing, counsel for Defendants provides the required verified statements regarding their willingness to comply, ability to comply, or objection to compliance, the Court will consider a partial reduction of the above monetary sanction.

Ruling on Motion to Compel Further Responses to Form Interrogatories The Motion to Compel Further Responses to Form Interrogatories brought by Plaintiff is GRANTED. The Request of Monetary Sanctions in the amount of $5,460.00 brought by Plaintiff is GRANTED.

This matter was previously on-calendar with directions to the parties to further meet and confer and produce documents given that the procedural issue regarding notice and service had been resolved.

The parties' status reports indicate that Defendants have made additional production efforts, but that there are some problems with that production and that Defendants would be providing missing documents after the filing of the Status Reports. This late production leaves the Court unable to accurately assess what has and has not been produced. This matter was previously on-calendar in mid-July, and when the Court issued its final ruling on this matter it continued the matter to be heard about two months out – giving the parties plenty of time to meet, confer, and produce the remaining documents. The fact that Attorney Kupfer's vacation schedule required the filing of a Status Report early (at a time when missing documents were still to be produced) makes accurate assessment of the issue difficult. Likewise, the fact that Attorney Ramirez still intended to be serving supplemental missing documents that late also makes accurate assessment of the issue difficult. Nonetheless, this Court made clear in the prior ruling that substantive production was to be made, and the fact that after significant passage of time that question still remains obfuscated is sufficient indication to the Court that a formal order compelling production is appropriate.

Accordingly, Defendants are ORDERED to pay monetary sanctions in the amount of $5,460.00 to plaintiff VRDO Plaza Partnership. Said monetary sanctions shall be sent to Attorney Brent Kupfer of Kupfer Legal at P.O. Box #371799, San Diego, California 92137 by no later than October 20, 2023.

If, prior to the hearing, counsel for Defendants provides the required discovery responses, the Court will consider a partial reduction of the above monetary sanction.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to Calendar No.: Event ID:  TENTATIVE RULINGS

3021413 CASE NUMBER: CASE TITLE:  VRDO PLAZA PARTNERSHIP VS TH & SC ENTERPRISES LLC [IMAGED]  37-2021-00011291-CU-BC-NC appear.

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