Judge: Cherol J. Nellon, Case: 23STCP00464, Date: 2025-03-11 Tentative Ruling
Case Number: 23STCP00464 Hearing Date: March 11, 2025 Dept: 14
#13
Case Background
This is an action to dissolve a limited liability
company, for an order for production of documents, fraud, breach of contract,
indemnity, and avoidance of transaction. Plaintiff alleges that Plaintiff made
loans to Defendant OSHER Bar & Grill (OSHER), an LLC of which he was a
member. In June 2019, Defendants Oren Ben Elisha and Yosef Ben Elisha began
using OSHER’s assets and checks to pay for services performed for another
restaurant they owned. The Ben Elishas also transferred money to themselves or
their creditors. The Ben Elishas ceased operate OSHER, causing its landlord to
serve a notice of default for abandoning the premises.
On February 17, 2023, Plaintiff Joseph Kamelgard filed
his Complaint against Defendants OSHER, Oren and Yosef Ben Elisha, Blvd. Café,
Ben Construction, Inc., LA Construction Services, Inc., and the Boulevard Café.
On January 28, 2025, the Court denied Plaintiff’s
motions to compel answers to requests for production and awarded Plaintiff
sanctions.
On February 4, 2025, Plaintiff filed this motion for
reconsideration.
Instant Pleading
Plaintiff moves for the Court to reconsider its January
28, 2025 order denying his motions to compel discovery.
Decision
Plaintiff’s motion for reconsideration is GRANTED.
The Court’s January 28, 2025 ruling denying his motions
to compel discovery is stricken. Plaintiff’s motions to compel Defendants Oren
and Yosef Ben Elisha’s responses to requests for production originally heard on
January 27, 2025 are GRANTED.
The Court awards Plaintiff sanctions in the amount of
$560 total for two hours of attorney time at a rate of $250 per hour plus
filing fees. Sanctions are imposed against the Ben Elishas and their counsel. Defendants
Oren and Yosef Ben Elisha are ordered to serve responses to Plaintiff’s
Requests for Production, Set Two and pay all sanctions within 30 days of this
order.
Discussion
On January 28, 2025, the Court denied Plaintiff’s
motions to compel Oren and Yosef Ben Elisha’s responses to requests for
production because the Ben Elishas counsel represented at the hearing on this
matter that he had served responses before the hearing on the matter, albeit
late. Plaintiff now moves for reconsideration on the grounds that the Ben
Elishas responses contained only documents with no responses to the requests
for production.
Code Civ. Proc.,
section 1008 states:
(a)
When
an application for an order has been made to a judge, or to a court, and
refused in whole or in part, or granted, or granted conditionally, or on terms,
any party affected by the order may, within 10 days after service upon the
party of written notice of entry of the order and based upon new or different
facts, circumstances, or law, make application to the same judge or court that
made the order, to reconsider the matter and modify, amend, or revoke the prior
order. The party making the application shall state by affidavit what
application was made before, when and to what judge, what order or decisions
were made, and what new or different facts, circumstances, or law are claimed
to be shown.
Here,
Plaintiff’s counsel alleges the Ben Elishas’ responses submitted the evening
before the hearing on the motions to compel contained only documents without
responses to the requests for production. (Marcus Decl., ¶7, Exh. B.) Plaintiff
provides the email from the Ben Elishas’ counsel which includes excel
attachments and a pdf of other unorganized documents. (Id.) The email
does not appear to contain verifications. Because the motion is based on new
facts the Court did not have before it at the original hearing, the Court will
reconsider the motions to compel discovery.
Code Civ.
Proc., section 2031.210 provides in relevant part that a response to a demand
for inspection, copying, testing, or sampling must contain (1) a statement that
the party will comply with the particular demand, (2) a representation that the
party lacks the ability to comply with the demand, or (3) an objection to the
particular demand.
Here, the
Ben Elishas’ responses contained only unorganized documents with no responses
to Plaintiff’s requests for production. The Ben Elishas’ response does not meet
any of the requirements for the form and content of a response to a request for
inspection, copying, and testing. The Court finds that the Ben Elishas have not
responded to Plaintiff’s requests for production because the email was not a
response as defined by statute. Additionally, the response did not contain
verifications, meaning the response is tantamount to no response at all.
Plaintiff’s motions to compel the Ben Elishas’
responses to his requests for production, set two are GRANTED.
Conclusion
Plaintiff’s motion for reconsideration is GRANTED.
The Court’s January 28, 2025 ruling denying his motions
to compel discovery is stricken. Plaintiff’s motions to compel Defendants Oren
and Yosef Ben Elisha’s responses to requests for production originally heard on
January 27, 2025 are GRANTED.
The Court awards Plaintiff sanctions in the amount of
$560 total for two hours of attorney time at a rate of $250 per hour plus
filing fees. Sanctions are imposed against the Ben Elishas and their counsel. Defendants
Oren and Yosef Ben Elisha are ordered to serve responses to Plaintiff’s
Requests for Production, Set Two and pay all sanctions within 30 days of this
order.