Judge: Daniel M. Crowley, Case: 20STCV28221, Date: 2023-09-29 Tentative Ruling
Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff via the Department's email: SMCdept71@lacourt.org before the set hearing time. See, e.g., CRC Rule 324(b). All parties are otherwise encouraged to appear by LACourtConnect for all matters.
Case Number: 20STCV28221 Hearing Date: October 31, 2023 Dept: 71
Galicia v. DS Services of America, Inc.
20STCV28221
1) Hearing on Order to Show Cause Re: why Plaintiff’s
counsel should not be sanctioned $2,000 and/or Plaintiff’s case dismissed for
failing to provide Code of Civil Procedure compliant discovery responses to
Defendants’ First set of Requests for Production.
2) Hearing on Order to Show Cause Re: why the Court
should consider any of Plaintiff’s discovery responses served after 12/1/2022,
verified, and, if the Court finds that there were not properly verified, why
the Court should not sanction Plaintiff’s counsel $2,000 and/or dismiss
Plaintiff’s case.
___________________________________________________________________________
On September
29, 2023, the Court held a hearing on an order to show cause why Plaintiff’s
complaint should not be dismissed on account of Plaintiff’s failure to provide
Code of Civil Procedure compliant responses to requests for production. The Court noted,
“In its minute order of September
5, the Court the admonished Plaintiff’s counsel that [Plaintiff’s] response did
not comply with the requirements of Code of Civil Procedure sections 2032.210-
2031.240 because it inappropriately indicated that Plaintiff was both fully
complying and yet unable to fully comply with the request. The response
indicated that Plaintiff was fully complying by producing those items in his
possession, custody, or control, while also indicating that there are items
responsive to the request that are not being produced. Plaintiff did not
specify whether the inability to produce the items was because the particular
item or category had never existed, had been destroyed, had been lost,
misplaced, or stolen, or had never been, or was no longer, in the possession,
custody, or control of Plaintiff. In other words, Plaintiff’s responses were
that whatever items Plaintiff had Plaintiff was producing, but Plaintiff
refused to indicate what responsive documents he was not producing or why he
was not producing them.
Mr. Ghermezian responds to the
Order to Show Cause with a declaration to which is attached a number of
exhibits, including Exhibit 1, “Plaintiff’s Sixth Further Response to
Defendant’s Production of Documents (Set One).” [sic] In Exhibit 1, Mr.
Ghermezian has amended the above response to read, “Plaintiff has conducted a
diligent search and a reasonable inquiry has been made to comply with this
demand. Furthermore, plaintiff has made a reasonable and good faith effort to
obtain the information requested by inquiry to other natural persons or
organizations. Plaintiff is fully complying with this request for inspection.
Plaintiff hereby produces all documents within Plaintiff’s possession and/or
control requested by propounding party and plaintiff will produce herein in
whole all records within plaintiff’s possession and control. The plaintiff will
comply with this particular demand and hereby states that the production
demanded will be allowed and that all documents or things in this demanded
category that are in the possession, custody, or control of plaintiff will be
included in this production. Please see attached exhibit “1". Discovery
and investigation continuing. Plaintiff reserves the right to supplement and/or
amend this response.” The only difference between this version and the version
of the response the Court found deficient is Plaintiff’s removal of the
sentence, “Plaintiff cannot produce all documents requested because plaintiff
does not have possession or control all requested documents.” [sic] Plaintiff’s
Sixth Further Response to Defendant’s Production of Documents (Set One) are
still not Code of Civil Procedure compliant.
The Court finds that the removal
does not correct the deficiency in the response. Although the response no
longer states that Plaintiff is unable to fully comply with the request and
nominally indicates that Plaintiff is allowing making the requested production
in whole, the response still limits the production to only those items in the
possession, custody, or control of plaintiff, without indicating whether any
items not in the possession, custody, or control of plaintiff exist. The
response is uncertain, therefore, and prevents Defendant from knowing whether
the items Plaintiff has produced comprise the universe of the items responsive
to the request. If Plaintiff is complying in whole, his response should read
simply, “Plaintiff will comply in whole to this request.” (Code of Civil
Procedure, section 2031.220.) If Plaintiff is unable to comply in whole,
Plaintiff’s response must so state, and explain why. (Code of Civil Procedure,
section 2031.230.)
The Court explained this to Mr.
Ghermezian at the September 5, 2023, hearing and in the Court’s minute order
following that hearing. Yet, Mr. Ghermezian still fails to provide
Code-compliant responses. Plaintiff’s Sixth Further Response to Defendant’s Production
of Documents (Set One) may not be verified.
On September 26, 2023, Defendant
filed a Response to Mr. Ghermezian’s Declaration. Included within the Response
is a Declaration of Alexander Robinson, setting forth information indicating
that Plaintiff may not have verified any of the responses served by Plaintiff’s
counsel since December 1, 2022. According to Mr. Robinson’s research,
Plaintiff’s “DocuSign” signatures since that date appear to simply be a
photocopy of a “DocuSign” signature dated December 1, 2022. If true, these
allegations pose significant issues. Plaintiff’s submission of falsely verified
discovery responses is tantamount to a violation of the Court’s prior orders to
provide further discovery responses for which terminating sanctions may be
appropriate. The California Supreme Court instructs that falsifying discovery
verifications is a serious breach. Verified discovery responses enable opposing
counsel to properly assess the merits of a claim or defense and serve an
important role in the efficient resolution of disputes. Deyo v. Kilbourne
(1978) 84 Cal.App.3d 771, 779-783. The use of a pre-signed verification in
discovery proceedings, without first consulting with the client to assure that
any assertions of fact are true, is a clear and serious violation of the
statutes and rules. (Drociak v. State Bar (1991) 52 Cal.3d 1085, 1090.)”
In sum, on September 29, 2023, the
Court found that Plaintiff’s counsel had not complied with the Court’s
September 5, 2023, order to provide Code of Civil Procedure compliant discovery
responses. The Court ordered Plaintiff, for a 6th time, to provide
Code-complaint responses to Defendants’ First set of Requests for Production by
October 30, 2023. In addition, the Court set a hearing on an order to show
cause why Plaintiff’s counsel should not be sanctioned $2,000 and/or
Plaintiff’s case dismissed for failing to provide Code of Civil Procedure
compliant discovery responses to Defendants’ First set of Requests for
Production on October 30, 2023, at 8:30 a.m. in Department 71. The Court also
set a hearing to show cause why the Court should consider any of Plaintiff’s
discovery responses served after December 1, 2022, verified, and, if the Court
finds that there were not properly verified, why the Court should not sanction
Plaintiff’s counsel $2,000 and/or dismiss Plaintiff’s case. and Juan Galicia were
ordered to appear in person in Department 71 at these hearings.
On October
25, 2023, Raymond Ghermezian, Esq. filed a declaration in opposition to the Orders
to Show Cause. Attached to the Declaration is “Plaintiff’s Seventh
Further Response to Defendant’s Production of Documents.”
The Seventh Further Response
appears to be verified by an actual signature by Juan Galicia (rather than the
DocuSign signatures of previous versions).
The Court finds that Plaintiff’s responses
Nos. 7, 13, 14, 15, 16, 19, 20, 21, 22, and 23 are Code of Civil Procedure
compliant.
On the other hand, the Court finds
Plaintiff’s responses to Nos. 1, 2, 3, 4, 5, 6, 8. 9, 10, 11, 12, 17, 18, 24,
25, 26, 27, 28, 29, and 30 to suffer from the same deficiency that Plaintiff’s
responses to the Sixth Further Responses did.
Plaintiff responses to these state,
“Plaintiff has made a reasonable
and good faith effort to obtain the information requested by inquiry to other
natural persons or organizations. Plaintiff hereby produces all documents
within Plaintiff’s possession and/or control requested by propounding party….”
The response still limits the
production to only those items in the possession, custody, or control of
plaintiff, without indicating whether any items not in the possession, custody,
or control of plaintiff exist. The response remains uncertain, therefore, and
prevents Defendant from knowing whether the items Plaintiff has produced
comprise the universe of the items responsive to the request.
The Court instructed Plaintiff on
September 29, 2023, that if he is complying in whole, his response should read
simply, “Plaintiff will comply in whole to this request.” (Code of Civil
Procedure, section 2031.220.), and that if he is unable to comply in whole, his
response needed to so state, and to explain why. (Code of Civil Procedure,
section 2031.230.) Plaintiff has
disregarded this instruction.
When the Court explained its
position at the September 29, 2023, hearing, Mr. Ghermezian stated that he would
not follow the Court’s instruction. Mr.
Ghermezian stated,
“I need to he heard on these
issues, your Honor, because I respectfully disagree with the Court’s
position. And, I’m not inclined to
provide any further responses. So if the
Court wants to make a ruling on whatever responses there is, then the court
should do that. And I’ll take it up on
appeal, and we’ll have the Court of Appeal rule on this issue.”
(Transcript of September 29, 2023, hearing, 5:6-13.)
Later, Mr.
Ghermezian again stated, “So I’m not inclined to provide any further responses
to the court.” (Transcript of September 29, 2023, hearing, 6:22-23.)
The Court explicitly instructed Mr.
Ghermezian what he needed to do to provide Code of Civil Procedure compliant
responses to Defendant’s Requests for Production. Plaintiff has willfully refused to supply
Defendant with Code of Civil Procedure compliant responses. The Court therefore dismisses Plaintiff's
complaint with prejudice. (Code of Civil
Procedure section 2031(i).)
The Court
reserves the issue of monetary sanctions pending the hearing of this
matter.