Judge: Elaine W. Mandel, Case: 19SMCV01622, Date: 2023-03-17 Tentative Ruling

Case Number: 19SMCV01622    Hearing Date: March 17, 2023    Dept: P

Tentative Ruling

Ghods v. Coldwell Banker Commercial NRT, Case No. 19SMCV01622

Hearing Date March 17, 2023

Defendants/Cross-Defendants Coldwell Banker Residential Brokerage Company, Thind and Maldonano’s Motions to Strike Third Amended Cross-Complaint (UNOPPOSED)

Plaintiff Ghods’ Motion for Judicial Notice (UNOPPOSED)

Plaintiff Ghods and cross-defendant Pink allege they were misled by their real estate brokers into leasing a piece of real property that was not permitted for the type of business they wished to operate. On March 23, 2022 cross-complainant Pink filed her third amended cross-complaint, asserting a cause of action for constructive fraud against defendants Coldwell Banker, Thind and Maldonado (collectively “Coldwell”). Since then, Pink failed to appear at duly noticed hearings on 10/20/2022, 12/7/2022 and 12/16/2022. Coldwell moves to strike the third amended cross-complaint. Plaintiff Ghods moves for judicial notice of various documents related to the property and its permit.

Defendants’ Motion to Strike

A court may impose terminating sanctions on a party misusing the discovery process. Cal. Code of civ. Proc. §2023.030(a). Generally, terminating sanctions should not be imposed until the court has imposed less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective. Lopez v. Watchtower Bible and Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 605. Although not labeled as such, Coldwell’s motion substantively seeks terminating sanctions for Pink’s repeated failures to appear. Coldwell has not explained why less severe alternatives would be ineffective. Therefore, the court will not take such a drastic measure. Pink does not oppose. DENIED. However, court intends to set an OSC re: dismissal of the third amended cross-complaint should Pink fail to appear for the case management conference and OSC hearings set on this date.

Plaintiff’s Motion Requesting Judicial Notice

Plaintiff Ghods seeks judicial notice of various sections of the Los Angeles Municipal Code related to zoning, a Coastal Development Permit issued in 2003, a certificate of occupancy from 2008 and three documents reflecting Coastal Commission Proceedings from 2015. These items are all subject to judicial notice under Cal. Evid. Code §452 as official executive and/or legislative acts. Judicial notice is appropriate as to the existence and legal effect of the documents, but not as to the truth of the matters stated therein. No opposition was filed. GRANTED.