Judge: Edward B. Moreton, Jr., Case: 21SMCV00633, Date: 2022-12-08 Tentative Ruling

Case Number: 21SMCV00633    Hearing Date: December 8, 2022    Dept: 200

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 200

MOVING PARTY:                    Defendant LA Apartment Rentals, Inc.

RESPONDING PARTY:         Plaintiffs Jeremy Pemberton, Arina Leontyeva and Anastasia Aygistova

BACKGROUND

            This is a landlord tenant dispute.  Defendant LA Apartment Rentals Inc. (“LAAR”) leased a property located at 525 Broadway, Santa Monica, CA 90401 (the “Property”).  It then subleased the Property to Plaintiffs Jeremy Pemberton and Arina Leontyeva (“Plaintiffs”).  LAAR alleges that when Plaintiffs applied for the sub-lease, they failed to disclose that Pemberton had been arrested for fraud and had just filed a Chapter 7 bankruptcy filing.  Plaintiffs did not pay rent once they moved in.  Accordingly, LAAR terminated the lease.

This hearing is on LAAR’s motion for issue, evidence and/or terminating sanctions against Plaintiffs for violation of a Court Order compelling Plaintiffs to respond to requests for production, set one.  LAAR also seeks monetary sanctions in the amount of $1,580.  No opposition was filed.      

LEGAL STANDARD

Where a party fails to obey an order compelling answers to discovery, “the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction.”  (Code Civ. Proc., §§ 2030.290, subd. (c), 2023.010, subd. (c); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.)  The Court may impose a terminating sanction against anyone engaging in conduct that is a misuse of the discovery process.  (Code Civ. Proc., § 2023.030, subd. (d).)  Misuse of the discovery process includes failure to respond to an authorized method of discovery or disobeying a court order to provide discovery.  (Code Civ. Proc., § 2023.010, subds. (d), (g).)  A terminating sanction may be imposed by an order dismissing part or all of the action.  (Code Civ. Proc., § 2023.030, subd. (d)(3).) 

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.)  If a lesser sanction fails to curb abuse, a greater sanction is warranted.  (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.)  However, “the unsuccessful imposition of a lesser sanction is not an absolute prerequisite to the utilization of the ultimate sanction.”  (Deyo v. Killbourne (1978) 84 Cal.App.3d 771, 787.)  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 v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 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 answers.  (Fairfield v. Superior Court for Los Angeles County (1966) 246 Cal.App.2d 113, 118.)  Lack of diligence may be deemed willful where the party understood its obligation, had the ability to comply, and failed to comply.  (Deyo, supra, 84 Cal.App.3d at p. 787; Fred Howland Co. v. Superior Court of Los Angeles County (1966) 244 Cal.App.2d 605, 610-611.)  The party who failed to comply with discovery obligations has the burden of showing that the failure was not willful.  (Deyo, supra, 84 Cal.App.3d at p. 788; Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250; Evid. Code, §§ 500, 605.)

DISCUSSION

LAAR served its requests for production of documents, set one on July 29, 2021.  The requests sought documents responsive to each substantive allegation in the Complaint.  Responses to the requests were due by September 2, 2021.  Over the course of many months, LAAR attempted to obtain responses from Plaintiffs, to no avail.  (Lorman Decl. ¶¶6-18).    At a hearing on November 9, 2021, Plaintiffs falsely told the Court they had already provided responses when they actually had not.  LAAR then filed a motion to compel responses to its requests for productions, which the Court granted on June 9, 2022.  The Court ordered Plaintiffs to serve verified responses, without objections, to the requests for production of documents.  The Court also ordered monetary sanctions in the amount of $1580, jointly and severally against Plaintiffs.  To date, Plaintiffs have still not provided responses as mandated by the Court’s June 9 Order.  Based on these facts, the Court finds there has been a willful failure by Plaintiffs to serve the required responses, and terminating sanctions are warranted.   

Plaintiffs have willfully disobeyed the Court’s order.  (Miranda v. 21^st Century Ins. Co. (2004) 117 Cal.App.4^th 913, 928 (“Disobedience of a court order constitutes an abuse of discovery for which the court may dismiss the action.”).)  There has been a history of abuse on the part of Plaintiffs who have failed repeatedly to respond to both formal and informal attempts to obtain discovery.  Plaintiffs have at least on one occasion intentionally misrepresented to the Court that they provided responses when they had not.  Defendants have been prejudiced by Plaintiffs’ discovery abuses as without any documents, they cannot adequately prepare for depositions.  Lesser sanctions would not curb Plaintiffs’ abuses as they have failed to respond despite a Court order and monetary sanctions. (Van Sickles v. Gilbert (2011) 196 Cal.App.4^th 1495, 1516-1518 (affirming grant of terminating sanctions where defendant failed to respond to discovery despite court order and monetary sanctions).)  Accordingly, the Court will issue an order terminating Plaintiffs’ action.   (Miranda, 117 Cal.App.4^th at 928-929 (a court has authority to order terminating sanctions as a first measure); accord Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 9-10).) 

Pursuant to Code Civ. Proc. §§2023.010, 2023.030 and 2031.300(c), the Court also grants LAAR’s motion for monetary sanctions in the amount of $1580, jointly and severally against Plaintiffs.  Given Plaintiffs’ willful failure to respond despite a Court order and the many informal attempts by LAAR to obtain the responses, the Court finds that Plaintiffs have misused the discovery process and monetary sanctions are warranted.

CONCLUSION

            For the foregoing reasons, the Court GRANTS Defendant’s motion for terminating sanctions and for monetary sanctions in the amount of $1580 jointly and severally against Plaintiffs Jeremy Pemberton, Arina Leontyeva and Anastasia Aygistova.  Plaintiffs’ Complaint is dismissed.    

DATED: December 8, 2022                                                 ___________________________

Edward B. Moreton, Jr.

Judge of the Superior Court