Judge: Daniel S. Murphy, Case: 21STCV36602, Date: 2023-05-19 Tentative Ruling

Case Number: 21STCV36602    Hearing Date: February 14, 2024    Dept: 32

BACKGROUND

            On October 5, 2021, Varouj Shekerdemian filed this action against Desai Holdings USA, LLC dba R Bar and Rakesh David Desai, alleging the following causes of action: (1) failure to provide accurate wage records; (2) unfair business practices; (3) constructive discharge; and (4-5) intentional/negligent infliction of emotional distress. The operative First Amended Complaint, filed May 27, 2022, adds causes of action for discrimination, harassment, and violation of civil rights.

            Shekerdemian alleges that Desai hired him as the general manager at R Bar. Desai did not classify or pay Shekerdemian as an employee but rather as an independent contractor. Desai initially ignored Shekerdemian’s requests to be properly classified but eventually put Shekerdemian on the payroll as a traditional exempt employee. During Shekerdemian’s employment, Desai was allegedly abusive and racist towards Shekerdemian and R Bar’s employees and patrons. This resulted in multiple altercations, causing Shekerdemian to fear for his safety. Shekerdemian eventually resigned due to the hostile work environment. After Shekerdemian quit, Desai allegedly continued harassing Shekerdemian through racist and vulgar text messages and also visited Shekerdemian’s new place of employment.

            On June 13, 2023, R Bar and Desai filed a complaint against Shekerdemian (23LBCV01084). The complaint asserts (1) breach of fiduciary duty, (2) intentional interference with business relations, (3) contractual interference, (4) conversion, and (5) unfair competition. The complaint alleges that Shekerdemian appointed himself as head of R Bar, harassed customers, stole restaurant property, and tried to poach R Bar employees to Shekerdemian’s own business. The two cases have been deemed related, with this case (21STCV36602) as the lead case.

            On November 20, 2023, the Court granted Shekerdemian’s motion to compel further responses from R Bar as to requests for production, ordering responses within 15 days and imposing sanctions. R Bar did not serve further responses until after the Court’s imposed deadline, and then failed to produce any documents despite making statements of compliance in the supplemental responses.

            On December 27, 2023, Shekerdemian filed the instant motion against R Bar to compel compliance and for monetary and nonmonetary sanctions. R Bar has not filed an opposition brief, but its counsel filed a response declaration on January 31, 2024. Shekerdemian’s counsel filed a reply declaration on February 7, 2024.   

LEGAL STANDARD

            “If a party filing a response to a demand for inspection, copying, testing, or sampling . . . thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance.” (Code Civ. Proc., § 2031.320(a).)

The Court may impose monetary or nonmonetary sanctions against a party engaging in misuse of the discovery process. (Code Civ. Proc., § 2023.030.) Misuse of the discovery process is defined as, among other things, failing to respond to an authorized method of discovery, making an evasive response to discovery, or disobeying a court order for discovery. (Id., § 2023.010.) If a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) “The penalty should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.” (Wilson v. Jefferson (1985) 163 Cal.App.3d 952, 959.) Generally, two facts are prerequisite to the imposition of nonmonetary sanctions: (1) there must be a failure to comply with a court order; and (2) the failure must be willful. (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.)

DISCUSSION

            R Bar does not deny that it failed to produce supplemental responses within the time ordered by the Court. R Bar further does not dispute that it responded with statements of compliance and then failed to actually produce the documents.

            R Bar’s counsel avers that in response to this motion, he “produced every single document I received from Named Defendants from the inception of this case.” (Rudd Decl. ¶ 2.) Counsel further avers that “[i]f there are other legitimate shortcomings with Named Defendants’ past discovery responses, I can fix them very quickly.” (Ibid.) Counsel’s declaration suggests that his health issues may have generally made handling his caseload more difficult. (Id., ¶¶ 3-5.)

However, there is no explanation related to the specific discovery requests at issue.  Additionally, under the Rules of Professional Conduct, a lawyer must perform legal services “competently,” which is defined as having the “mental, emotional, and physical ability reasonably necessary for the performance of such service.” (Rule 1.1(a), (b).) A lawyer shall withdraw if “the lawyer’s mental or physical condition renders it unreasonably difficult to carry out the representation effectively.” (Rule 1.16(a)(3).) Counsel declares that he has “no plans to withdraw from this matter” and has “the bandwidth I need” to continue this litigation. (Id., ¶ 6.) That being the case, R Bar is expected to timely comply with its discovery obligations. Shekerdemian is not required to sustain continuous delays. Plaintiff’s counsel avers that he was not served with defense counsel’s declaration and has not received any document production in response to this motion. (Tokar Decl. ¶¶ 3-4.)

            The Court finds that the requested nonmonetary sanctions are disproportionate at this stage. However, those sanctions remain possible should R Bar continue to defy its discovery obligations or the Court’s orders. The Court finds that monetary sanctions are warranted. Shekerdemian reasonably requests $3,561.65. (See Tokar Decl. ¶ 17.)  

CONCLUSION

            Shekerdemian’s motion to compel compliance is GRANTED. R Bar shall produce documents responsive to RFP Nos. 1, 2, and 8-48 within 15 days.

            Shekerdemian’s motion for sanctions is GRANTED in part. The Court sanctions R Bar and its counsel in the amount of $3,561.65, to be paid within 30 days. Nonmonetary sanctions are denied.