Judge: David Sotelo, Case: BC701226, Date: 2022-08-10 Tentative Ruling
Case Number: BC701226 Hearing Date: August 10, 2022 Dept: 40
MOVING PARTY: Plaintiff St.
Andrew’s Pharmacy, LLC.
In relevant part, Plaintiff
St. Andrew’s Pharmacy, LLC (“SAP/Green”)—allegedly owned by Elite 126
Management, LLC and Elite’s owner, Mr. Cobby Pourtavosi—sue Defendants St. Andrew’s Green, a
Cooperative Corporation (“New SAG”), Kandace Simplis aka Kathy Smith (“Smith”),
and Does 1-50 on the grounds that Defendants acted in such a way as to deprive
SAP/Green of its City of Los Angeles issued medical marijuana license.
SAP/Green now brings
this unopposed Motion to Compel Responses to Form Interrogatories, Special
Interrogatories, and Requests for Production (Set One) from Defendant Smith.
SAP/Green also brings a Request for Sanctions in the amount for $735.
The Motion to Compel
is GRANTED because Plaintiff SAP/Green shows (1) proper service of valid
interrogatory requests, (2) nonresponse of the same, and (3) proper scope of
discovery within these requests. The Request for Sanctions is also GRANTED in
the total amount of $985, comprised of $735 in sanctions against Smith pursuant
to California Rules of Court, rule 3.1348 for nonresponse to the interrogatory and documents requests, and $250 in
sanctions against Smith pursuant to Code of Civil Procedure section
2023.050 for nonresponse to the
documents request.
Plaintiff St. Andrew’s Pharmacy LLC is a pre-Medical
Marijuana Interim Control Ordinance (“ICO”) medical marijuana dispensary
operating commercially as St. Andrew’s Green (hereafter, “SAP/Green”).
SAP/Green originally operated out of 432 S. San Vicente Boulevard, Suite 100,
Los Angeles, California 90048 (“432 S. San Vicente”).
Plaintiff was issued BTRC account number 002350758-0001-8
(“BTRC-758”) by the City of Los Angeles’s Office of Finance prior to September
14, 2007, permitting the sale of medical marijuana.
Through facts obtained via discovery, Plaintiff SAP/Green
alleges that:
On or about March 13, 2008, Defendant Kandace Simplis, aka
Kathy Smith (“Smith”)—as agent for a predecessor-in-interest of SAP/Green— transferred
all rights she had to SAP/Green to Mr. Kevin Hakamian (“Hakamian”).
Hakamian subsequent sold SAP/Green Mr. Farhad Fred Rashti,
who sold the business to a company owned by Mr. Cobby Pourtavosi (“Pourtavosi”)—Elite
126 Management, LLC (“Elite Management”—on January 5, 2011.
The Rashti-Pourtavosi sale was facilitated by a SAP/Green
employee under Rashti and friend of Pourtavosi, Andrew Khalili, who was originally
hired by Hakamian when Hakamian operated SAP/Green.
Unknown to Pourtavosi, Rashti had not obtained landlord
consent for the sale of SAP/Green so as to allow Elite Management o operate
SAP/Green at the 432 S. San Vicente address, requiring the business to relocate
to to relocate SAP/Green to 659 S. La Bea Avenue, Los Angeles, California 90036
(“659 S. La Brea”).
On June 14, 2013, the City adopted Proposition D, Ordinance
No. 182580, which allowed a medical marijuana business to continue operating if
timely registered under both the Interim Control Ordinance and the
Grandfather/Lottery Ordinance. SAP/Green had timely registered under these
provisions and had continuously operated as a medical marijuana dispensary in
accordance with the City’s ordinances, thus qualifying for Proposition D
protection.
During this time, recreational marijuana was expected to be
legalized and pre-ICO medical marijuana dispensaries were expected to be the
first in line to receive licenses for the retail sale of recreational
marijuana.
SAP/Green, under the ownership of Plaintiff, continued its
operations until 2014, each year receiving its annual renewal business license
from the City of Los Angeles demonstrating its pre-ICO status through its BRTC
license.
However, in 2015, SAP/Green did not receive a renewal from
the City of Los Angeles. Mr. Pourtavosi went to the City’s Office of Finance to
confirm SAP/Green’s renewal of its BTRC and to confirm the City of Los Angeles
had received payment. Mr. Pourtavosi was informed that the BTRC license had
been renewed and all fees paid. Mr. Pourtavosi asked where SAP/Green’s renewal
BTRC had been sent, and he was told it was sent to a “P.O. Box”—later
determined to be P.O. Box No. 642282, Los Angeles, CA 90064.
Through discovery, Pourtavosi learned that the P.O. Box was
Defendant Smith’s P.O. Box, or that Smith had diverted SAP/Green’s BTRC renewal
certificate. Mr. Pourtavosi asked that the address for SAP/Green be corrected
but was told that the City was not allowing any changes as the City was
undertaking to confirm Proposition D compliance with Pre-ICO medical marijuana
businesses such as SAP/Green.
Following the non-delivery of BRTC license, SAP/Green
employees began to quit for fear that SAP/Green was not in compliance with
Proposition D. SAP/Green’s landlord then refused to renew SAP/Green’s lease
because of the same fear. As a result, SAP/Green was forced to cease active
operations fear it would be raided by the police for lack of a current pre-ICO
BTRC.
Smith, without Pourtavosi’s or Pourtavosi’s SAP/Green’s
knowledge or consent, and purporting to act on Plaintiff’s behalf, began
submitting forms to the Office of Finance to renew Plaintiff’s BTRC license.
In May of 2015, Mr. Pourtavosi received a “Delinquent False
Alarm Bill” from the Los Angeles Police Department billed to SAP/Green but
reflecting that a “St. Andrews Green” was operating at 7031 Foothill Boulevard,
Tujunga, California 91042.
According to the records of the California Secretary of
State, Smith had submitted a form to the City of Los Angeles Office of Finance
purporting to change the legal name on Plaintiff’s BTRC to “St. Andrew’s Green,
a Cooperative Corporation,” entity number C3477677 (hereafter, “Old SAG”), a
company Smith had been operating for an unknown amount of time, actions all
taken without knowledge or authorization from Plaintiff SAP/Green. (Secretary
of State records reflect that Old SAG was created on June 6, 2012 and listed a
“Rocio Gallegos” as its Agent.)
Smith thus wrongfully took the SAP/Green BRTC number and
afterwards “sold” it to Defendant Arnold Abramyan (“Abramyan”) in 2014 for
$150,000, along with two other pre-ICO BTRC Smith claimed to own.
Abramyan, in conjunction with Smith, then began operating Old
Sag under SAP/Green’s pre-ICO BTRC and with Secretary of State entity number C3477677.
Plaintiff SAP/Green—as owned by Pourtavosi—thereafter made demand
on SAG to immediately cease and desist and to return all property associated
with Plaintiff back to Plaintiff, as it was and remained the rightful owner of
the business associated with the BTRC and the BTRC itself. SAG did not return
the BTRC or the property.
A dispute subsequently arose between Abramyan and Smith,
leading Smith to dissolve Old SAG. (Secretary of State records reflect the Old
SAG has been inactive since February 23, 2018.)
Abramyan, however, continued to use Plaintiff’s pre-ICO BTRC
to qualify for immunity under Proposition D with his newly formed company,
Defendant “St. Andrew’s Green, A Cooperative Corporation,” entity number
C4131658 (hereafter “New SAG”). (Secretary of State records reflect that New
SAG was created on April 2, 2018 with Defendant Abramyan as the registered
Agent.)
On April 11, 2018, Plaintiff SAP/Green (as owned by
Pourtavosi) filed this action, alleging:
(1) Violation of Penal Code section 496 against SAP (no
differentiation as to Old or New SAP because Pourtavosi had not yet discovered
of the entities’ difference, but apparently alleged as to New SAP because
Complaint made allegations against an active entity and only New SAP was in
operation at this time) and against Smith and Does 1-50;
(2) Conversion against SAG, Smith, and Does 1-50;
(3) Replevin against SAG and Does 1-50;
(4) Violation of Unfair Competition Law against SAG, Smith,
and Does 1-50; and
(5) Common Counts against SAG, Smith, and Does 1-50.
On May 10, 2018, New SAG filed a Cross-Complaint against
SAP/Green, Smith, and ROES 1-200, alleging three indemnity claims, a
declaratory relief claim, and contribution against these Cross-Defendants.
Abramyan was not named in the Cross-Complaint.
On December 22, 2020, Plaintiff SAP Green (as owned by
Pourtavosi) filed its First Amended Complaint (“FAC”), updating its pleadings
to: include the above discussed facts obtained through discovery by Plaintiff
SAP/Green; add Defendant Abramyam to this action; add Defendant Abramyan to the
original five claims pled in the Complaint; and add a (6) sixth cause of action
for Declaratory Relief.
On December 28, 2020, New SAG and Abramyan as
Cross-Complainants brought their First Amended Cross-Complaint in this action,
updating their pleadings to allege:
(1) Violation of Penal Code section 496 against SAP/Green,
Elite Management, Pourtavosi, Khalili, and Roes-200;
(2) Conversion against SAP/Green, Elite Management,
Pourtavosi, Khalili, and Roes-200;
(3) Violation of Unfair Competition Law against SAP/Green,
Elite Management, Pourtavosi, Khalili, and Roes-200;
(4) Implied Indemnity against Smith;
(5) Comparative Indemnity against Smith; and
(6) Declaratory Relief against Smith.
Before June 2, 2022, Smith was deposed by Plaintiff
SAP/Green and asked to produce certain documents.
Following this deposition, and due to Smith’s failure to
provide adequate discovery production, on June 2, 2022, SAP/Green served Smith
with Form Interrogatories, Special
Interrogatories, and Requests for Production (Set One). Smith did not respond by the due date of July
6, 2022.
On July 12, 2022,
SAP/Green’s counsel wrote to Smith’s counsel, Ronda N. Baldwin-Kennedy, Esq.,
indicating that SAP/Green would file a Motion to Compel if the requested
discovery was not produced.
On July 15, 2022,
SAP/Green filed this instant Motion to Compel Responses to Form
Interrogatories, Special Interrogatories, and Requests for Production (Set One)
from Defendant Smith (“Motion”).
On July 22, 2022, Netzah
& Shem-Tov and Raviv Netzah, Esq. filed a Notice of Disassociation of
Counsel from Kathy Smith. On July 28, 2022, Smith filed a Substitution of
Attorney form with the Superior Court indicating that she was disassociating
from Ronda Baldwin-Kennedy and self-representing in this action.
On August 3, 2022,
SAP/Green filed a Reply to Smith’s “Opposition”, but no such Opposition appears
in the electronic record. According to the Reply, Smith argues on Opposition
that this Motion should be denied because SAP/Green did not meet and confer
prior to filing its Motion.
On August 8, 2022,
Smith filed a Notice of Unavailability with the Court indicating that she, in
pro per, is not available for hearings between August 10 and 17, 2022.
The record fails to
reflect that Smith provided responses to Form Interrogatories, Special
Interrogatories, and Requests for Production (Set One).
Legal Standard: A motion to compel an initial
response can be made on the ground that a party did not serve a timely response
to interrogatories or a demand to produce.
(Code Civ. Proc., §§ 2030.290, subd. (d)
[interrogatories], 2031.300, subd. (d) [demand to produce]; see Sinaiko
Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148
Cal.App.4th 390, 404.) To establish this
ground, a movant must show: (1) proper service, (see
Code Civ. Proc., §§ 2030.080, subd. (a) [interrogatories], 2031.040 [demand to
produce]); and (2) expiration of the deadline for the initial response 30
days after service, (see Code Civ. Proc., §§ 2030.260,
subds. (a), (b) [interrogatories], 2031.260 [demand to produce]).
A motion to compel initial responses is not subject to a
45-day time limit, and the propounding party does not have to demonstrate
either good cause or that it satisfied a ‘meet and confer’ requirement. (See
Code Civ. Proc. §§ 2030.210-2030.310 [interrogatories], 2031.210-2031.320
[request for production]; see also Sinaiko, supra, 148
Cal.App.4th at p. 404.) Neither is a separate statement required when no
discovery response has been received.¿ (See Cal. Rules of Court, rule 3.1345,
subd. (b).) However, a court must deny a motion to compel initial discovery
where the discovery sought is outside the scope of discovery. (See CBS, Inc.
v. Superior Ct. (1968) 263 Cal.App.2d 12, 19; see also Code. Civ. Proc., § 2017.010 [scope of discovery, “any
matter, not privileged, that is relevant to the subject matter involved in the
pending action or to the determination of any motion made in that action, if
the matter either is itself admissible in evidence or appears reasonably
calculated to lead to the discovery of admissible evidence”].)
Analysis: SAP/Green shows evidence that it served the
Form Interrogatories, Special Interrogatories, and Requests for Production (Set
One) on Defendant Smith on June 2, 2022. (Jul. 15 Mot., Sacuzzo Decl., Exs. 1
[proof of service], 2-4 [FROGS, SROGS, RPDs].)
SAP/Green also shows evidence that Defendant Smith has not
responded to there discovery requests since July 6, 2022, i.e., the date on
which responses from Smith were due. (Jul. 15 Mot., Sacuzzo Decl., ¶¶ 1-4; Aug.
3 Reply, Sacuzzo Decl., ¶ 4.)
Last, a review of the discovery requests show that they are
within the proper scope of discovery because the discovery sought concerns,
inter alia, Defendant Smith’s defenses
in this action, Smith’s entitlement to ownership of SAP/Green and Old SAG
(relevant to the BRTC sale from Smith to Abramyan and Old SAG), and Smith’s
documents showing agreements and communications between Smith and a number of
individuals with regard to the BRTC license at issue, including Defendant
Abramyan, as well as other matters relevant to the divestment of SAP/Green’s
ability to operate as a medical marijuana dispensary. (Jul. 15 Mot.,
Sacuzzo Decl., Exs. 1-4.)
The Court notes that SAP/Green need not have met and
conferred with respect to this Motion because no response to the
interrogatories or request for production were received by SAP/Green from
Smith. (Cal. Rules of Court, rule 3.1345, subd. (b).)
Legal Standard: The Court must impose monetary
sanctions against anyone—party, nonparty, or attorney—who unsuccessfully makes
or opposes the motion, unless it finds that the person to be sanctioned acted
withs substantial justification or other circumstances make the imposition of
the sanctions unjust. (See Code Civ.
Proc., §§ 2030.290, subd. (c) [interrogatories], 2031.300, subd. (c) [demand to
produce]; see Sinaiko, supra, 148 Cal.App.4th at pp. 404
[interrogatories and demand to produce].)
The court may award sanctions under the Discovery Act in favor of a
party who files a motion to compel discovery, even though no opposition to the
motion was filed, or opposition to the motion was withdrawn, or the requested
discovery was provided to the moving party after the motion was filed. (Cal. Rules of Court, rule 3.1348, subd.
(a).)
The Court must impose a $250.00 monetary sanction on any
party, person, or attorney who does not respond in good faith to a request for
the production of documents. (Code Civ. Proc., § 2023.050, subd. (a)(1).) This sanction is in addition to any other
sanction imposed pursuant to Code of Civil Procedure sections 2023.010 to
2023.040. (Code Civ. Proc., § 2023.050,
subd. (a).)
Analysis: Here, the Court GRANTS the requested $735
in sanctions (Jul. 15 Mot., Sacuzzo Decl., ¶ 5) pursuant to California Rules of
Court, rule 3.1348 because Defendant Smith has completely failed to respond to
SAP/Green’s June 2, 2022 Form Interrogatories, Special Interrogatories, and
Requests for Production (Set One).
The Court also AWARDS $250 in sanctions pursuant to Code of
Civil Procedure section 2023.050 based on Defendant Smith’s failure to provide
responses to the June 2, 2022 Requests for Production (Set One).
Plaintiff St.
Andrew’s Pharmacy, LLC’s Motion to Compel Responses to Form Interrogatories,
Special Interrogatories, and Requests for Production (Set One) from Defendant
[Kandace Simplis aka] Kathy Smith is GRANTED because Plaintiff SAP/Green shows
(1) proper service of valid interrogatory requests, (2) nonresponse of the
same, and (3) proper scope of discovery within these requests.
Plaintiff St.
Andrew’s Pharmacy, LLC’s Request for Sanctions is GRANTED in the amount of
$985, comprised of $735 in sanctions against Smith pursuant to California
Rules of Court, rule 3.1348 for
nonresponse to the interrogatory and documents requests, and $250 in sanctions
against Smith pursuant to Code of Civil Procedure section 2023.050 for nonresponse to the documents request.