Judge: Colin Leis, Case: 23STCV11988, Date: 2025-02-27 Tentative Ruling
Case Number: 23STCV11988 Hearing Date: February 27, 2025 Dept: 74
Sidky v.
Baramily et al.
Defendants Ramy Baramily; Wrapedia,
Inc. and RNB Signs MFG, Inc.’s Motion to Vacate Orders Compelling Responses to
Discovery
BACKGROUND
This
motion arises from a fraud dispute.
Plaintiff
Sidky filed a complaint against defendants Ramy Baramily; Wrapedia Inc. (Wrapedia)
and RNB Signs MFG, Inc (Signs).
On
April 23, 2024, defendant Baramily was served discovery requests as Chief
Executive Officer of RNB Signs MFG, Inc. and Wrapedia, Inc. At the time, neither of the corporate defendants
were represented by counsel. The
corporate defendants failed to respond to the discovery requests and Plaintiff
filed several motions to compel initial responses. The corporate defendants did not file an
opposition to the motions. On June 28th,
2024, the Court granted Plaintiff’s Motion to Compel Initial Responses.
Defendants
Ramy Baramily; Wrapedia Inc. and RNB Signs MFG, Inc. (Defendants) now moved to
vacate the orders compelling discovery.
LEGAL STANDARD
The
Court has discretion to relieve any party from a judgment, dismissal, order, or
other proceeding taken against the party through the party’s own mistake,
inadvertence, surprise or excusable neglect.
(Code Civ. Proc. § 473(b).) The
application must include a copy of the pleading proposed to be filed and must
be made within a reasonable time not to exceed six months. (Code Civ. Proc. § 473(b).)
DISCUSSION
Defendants
request relief from the orders to compel discovery on the grounds that the
discovery motions were improperly served on the corporate defendants who did
not have counsel at the time. The Court finds their contention of improper
service unpersuasive.
Defendants
argue that they failed to oppose the motion due to mistake, inadvertence and
excusable neglect of the party.
Specifically, Defendants allege that they did not understand the
ramifications of failing to oppose the motion due to their lack of
counsel.
Mistake
of law is based on reasonableness as to the misconception of the law, and the
justification in not knowing the correct law.
(Ron Burns Const. Co., Inc. v.
Moore (2010) 184 Cal.App.4th 1406, 141.) On April 10, 2024, Wrapedia and
Signs improperly filed motions for substitution of attorney, despite the notice
provided on the MC-050 which states that Corporations cannot represent
themselves. (See Substitution of
Attorney 04/10/24.) Furthermore,
Plaintiff’s attorney provided in their meet and confer letter regarding the
failure to respond to discovery that they advised Defendants to seek an
attorney for representation of the corporate entities because a corporation
cannot represent itself before the Court.
(Whittemore Decl., Ex. B.) The
Defendants’ mistake of the law was unreasonable given the notice of both the
MC-050 and Plaintiff’s Counsel regarding the requirement to engage counsel to
represent the corporate defendants.
Therefore, the Court denies Defendants’ Motion to Vacate Orders Granting
Plaintiff’s Motions to Compel Discovery Responses.
CONCLUSION
The
Court denies Defendants’ Motion to Vacate Orders.
Defendants to give notice.
/////////////////////////
Sidky v.
Baramily et al.
Defendants Ramy Baramily; Wrapedia,
Inc. and RNB Signs MFG, Inc.’s Motion for Terminating Sanctions
BACKGROUND
This
motion arises from a fraud dispute.
Plaintiff
Sidky filed a complaint against defendants Ramy Baramily; Wrapedia Inc.
(Wrapedia) and RNB Signs MFG, Inc (Signs).
On
April 23, 2024, defendant Baramily was served discovery requests as Chief
Executive Officer of RNB Signs MFG, Inc. and Wrapedia, Inc. At the time, neither of the corporate
defendants were represented by counsel.
The corporate defendants failed to respond to the discovery requests and
Plaintiff filed several motions to compel initial responses. The corporate defendants did not file an opposition
to the motions. On June 28th, 2024, the
Court granted Plaintiff’s Motion to Compel Initial Responses.
Defendants
Ramy Baramily; Wrapedia Inc. and RNB Signs MFG, Inc. (Defendants) seek
terminating sanctions. The court disregards Defendants’ surresponse in
opposition filed on February 13, 2025, and instead considers only Defendants’
response filed on January 9, 2025.
LEGAL STANDARD
The court is authorized,
after notice and an opportunity for hearing, to impose the following sanctions
against anyone engaging in conduct that is a misuse of the discovery process:
monetary sanctions, issue sanctions, evidence sanctions, terminating sanctions,
and contempt. (Code Civ. Proc.,
§¿2023.030, subds. (a)-(e); § 2023.010, subd. (d) [failing to respond to
discovery].)
“The discovery statutes
evince an incremental approach to discovery sanctions, starting with monetary
sanctions and ending with the ultimate sanction of termination. [Citation.]” (Doppes v. Bentley Motors, Inc.¿(2009)
174 Cal.App.4th 967, 992; see J.W. v. Watchtower Bible and Tract Society of
New York, Inc.¿(2018) 29 Cal.App.5th 1142, 1169.) If a lesser sanction fails to curb misuse, a
greater sanction is warranted. (Doppes,
supra, 174 Cal.App.4th at p. 992.) “Discovery
sanctions ‘should be appropriate to the dereliction and should not exceed what
is required to protect the interests of the party entitled to but denied
discovery.’” (Ibid.) “But where a violation is willful, preceded by
a history of abuse, and the evidence shows that less severe sanctions would not
produce compliance with the discovery rules, the trial court is justified in imposing
the ultimate sanction.” (Id., quoting
Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279–280); Creed-21
v. City of Wildomar¿(2017) 18 Cal.App.5th 690, 702, quoting Doppes
and Mileikowsky.)¿¿
The court should consider
the totality of the circumstances, including conduct of the party to determine
if the actions were willful, the detriment to the propounding party, and the
number of formal and informal attempts to obtain discovery. (Lang v. Hochman (2000) 77 Cal.App.4th
1225, 1246.) Terminating sanctions
should not be ordered lightly, but are justified where a violation is willful,
preceded by a history of abuse, and there is evidence that less severe
sanctions would not produce compliance with the discovery rules. (Doppes, supra, 174 Cal.App.4th at p.
992.)
Before any sanctions may
be imposed the court must make an express finding that there has been a willful
failure of the party to serve the required discovery responses. (Fairfield v. Superior Court for Los
Angeles County (1966) 246 Cal.App.2d 113, 118.) The party who failed to comply with discovery
obligations has the burden of showing that the failure was not willful. (Deyo v. Kilbourne (1978) 84 Cal.App.3d
771, 788; Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250,
252-253.)
Evidence or issue
sanctions may be imposed only after parties violated discovery orders
compelling further responses, except in exceptional circumstances, including
where there was sufficiently egregious misconduct regarding a failure to
respond to discovery, or a prior discovery order would be futile. (New Albertsons, Inc. v. Superior Court (2008)
168 Cal.App.4th 1403, 1426.)
DISCUSSION
Plaintiff
seeks terminating sanctions against Defendants on the grounds that they failed
to provide discovery sanctions even after the Court’s orders compelling
discovery responses. Plaintiff served Defendants
discovery requests on February 28, 2024, and February 29, 2024. (Whittemore Decl., ¶¶ 4, 5.) Defendants failed to respond by April 4,
2024. (Whittemore Decl., ¶ 8.) Plaintiff provided notice to Defendants of
the failure to respond and advised them to seek counsel for the corporate
defendants on April 5, 2025. (Whittemore
Decl., ¶ 8; Ex. A.) After no response,
Plaintiff filed Motions to Compel Discovery.
(Whittemore Decl., ¶ 9.) The
Court granted the Motions to Compel Discovery on June 24, 2024, and June 28,
2024. (Whittemore Decl., ¶¶ 15, 16 Ex. D,
E.) As of Defendants opposition filed February
13, 2025, no discovery has been served.
(See Opp. at pp. 3:14-21.) Defendant’s
Counsel states that they offered to pay the monetary sanctions in exchange for
taking the motion off calendar, but Plaintiff’s counsel refused. (Sterling Decl., ¶ 4.)
The
Court must first make a finding of willful failure to serve responses. (Fairfield, supra, 246 Cal.App.2d at pp. 118.) Defendants allege that their failure to serve
discovery responses was due to their previous attorney’s failure to provide
responses to the copious discovery requests propounded by Plaintiff.
Defendants
have had nearly seven months to provide discovery responses. Discovery was initially propounded when
Defendants were represented by their initial attorney. Defendants’ initial attorney neither
requested an extension nor provided any discovery responses. (Whittemore Decl., ¶ 7.) After Defendants’ attorney filed a notice of
substitution, Plaintiff’s counsel emailed Baramily, Wrapedia and Sign’s CEO, to
provide a 10-day extension and advise that the corporate defendants seek
representation. (Whittemore Decl., ¶ 8.) Plaintiff still received no response and no
discovery. (Whittemore Decl., ¶ 9.) When Plaintiff learned that Defendants had
retained new counsel in June, Plaintiff’s counsel contacted Defendants’
counsel, Ronen Zargarof (Zargarof). (Whittemore
Decl., ¶ 10.) Zargarof provided no
reassurance that Defendants would be complying with the discovery
requests. (Whittemore Decl., ¶ 10.) At a hearing, Zargarof stated that all
discovery would be provided on June 24, 2024.
(Whittemore Decl., ¶ 11.) No
discovery was provided. (Whittemore
Decl., ¶ 12-14.) After the Court entered
the orders compelling discovery, Defendants still failed to provide discovery
responses. (Whittemore Decl., ¶ 18.) Defendants also failed to pay the $3,735.00
in discovery sanctions ordered by the Court.
(See Sterling Decl., ¶ 4 [offering to pay sanctions in exchange for
taking the motion for terminating sanctions off-calendar].) Additionally, in response to Plaintiff’s
notice of Motion for Terminating Sanctions, Zargarof sent a reply email which
indicated in no uncertain terms that he was uninterested in pursuing traditional
litigation. (See Reply Whittemore Decl.,
Ex. E.)
The
continued failure to provide any discovery responses, across multiple
attorneys, including now associated attorney Scott Sterling (Sterling)
indicates to the court a willful failure to provide discovery responses which
was advised or encouraged by Zargarof. Therefore, the Court imposes issue
sanctions, but not terminating sanctions, against Defendants for all nine
discovery motions at issue in in the June 24 and June 28, 2024 orders. (Compare
Van Sickle v Gilbert (2011) 196 Cal.App.4th 1495, 1530 [see
“Some Advice”].) Plaintiff to file a
proposed order with the Court.
Monetary Sanctions
Plaintiff
requests $2,535.00 in discovery sanctions against Zargarof. The Court may impose sanctions against an
attorney when the attorney advised the client to engage in the discovery conduct. (Kwan Software Eng’g, Inc. v. Hennings
(2020) 58 Cal.App.5th 57, 81-85.) The burden
is on the attorney to prove that they did not advise the client of that course
of conduct. (Cornerstone Realty
Advisors, LLC v. Summit Healthcare REIT, Inc. (2020) 56 Cal.App.5th 771,
799-804.) Zargarof does not provide any
evidence that he did not advise Defendants of the conduct, and given communications
between Counsel, the Court finds it reasonable to impose sanctions of $2,535.00
in sanctions against Zargarof.
CONCLUSION
The
Court grants in part and denies in part Plaintiff’s motion for sanctions. Plaintiff to prepare a proposed order in
accordance with the Court’s rulings.
Defendants’ attorney Ronen Zargarof to pay $2,535.00 in discovery sanctions.
Plaintiff
to give notice.