Judge: H. Jay Ford, III, Case: 22SMCV01167, Date: 2024-04-30 Tentative Ruling

Case Number: 22SMCV01167    Hearing Date: April 30, 2024    Dept: O

Case Name:                Gabriel Robles v. Alboorz, LLC, et al.

SUBJECT:                           MOTION FOR TERMINATING SANCTIONS AND FOR MONETARY SANCTIONS OR, ALTERNATIVELY, FOR LESSER SANCTIONS

MOVING PARTY:  Plaintiff Gabriel Robles  

RESP. PARTY:        Defendants Alboorz, LLC (“Alboorz”), Mohammadreza Yazdi (“Yazdi”), and Tahereh Taheryazdy Yazdi

TENTATIVE RULING

            Plaintiff’s Motion for Terminating Sanctions and Monetary Sanctions or, alternatively, for Lesser Sanctions is GRANTED IN PART. The Court DENIES Plaintiff’s request for terminating, issue and evidentiary sanctions. The Court GRANTS IN PART Plaintiff’s request for monetary sanctions.

The Court GRANTS Plaintiff’s request for judicial notice pursuant to Evid. Code §§ 452 and 453.

The Court SUSTAINS Plaintiff’s evidentiary objections numbers 1, 2, and 3 to the declaration of Paul Marks in opposition to the motion for terminating sanctions on the grounds of hearsay.

The Court SUSTAINS Plaintiff’s evidentiary objections numbers 1, 2, 3, and 4 to the declaration of Nazrin Yazdi in opposition to the motion for terminating sanctions on the grounds of hearsay.

REASONING

“A decision to order terminating sanctions should not be made lightly.” (Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 702.) A trial court’s order to impose terminating sanctions will be reversed only if it “was arbitrary, capricious, or whimsical.” (Ibid.)  “[W]here a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.” (Ibid.) Trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders. (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390.) Terminating sanctions are warranted when a party’s lack of compliance with the discovery process has caused the opposing party prejudice. (Doppes v. Bentley Motors, Inc., supra, 174 Cal.App.4th 967, 989.)

As an alternative to terminating sanctions, “[t]he court may impose an issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.” (Code Civ. Proc., § 2023.030, subd. (b).) “The court may impose an evidence sanction by an order prohibiting an party engaging in the misuse of the discovery process from introducing designated matters in evidence.” (Code Civ. Proc., § 2023.030, subd. (c).)

California Code of Civil Procedure, Section 2023.030 provides that “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” A court has discretion to fix the amount of reasonable monetary sanctions. (Cornerstone Realty Advisors, LLC v. Summit Healthcare Reit, Inc. (2020) 56 Cal.App.5th 771, 791.)

Terminating Sanctions

The October 30, 2023 stipulation agreed to at the IDC and entered into the minutes is a court order. Defendants’ counsel orally stipulated to serve supplemental responses on behalf of each defendant to set one of Plaintiff’s inspection demand by December 15, 2023, and the depositions of Defendant Yazdi individually and as a PMK for Defendant Alboorz was to commence on January 15, 2024. (10/30/23 Minute Order and 11/02/23 Minute Order.) Such stipulation is binding on the parties as it was made by Defendants’ counsel. (See Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279 [“A stipulation in proper form is binding upon the parties if it is within the authority of the attorneys.”).] Thus, Defendants are bound by such stipulations.

Moreover, despite the deposition of Defendant Taheri being ordered to take place on March 25, 2024 (02/01/24 Minute Order), the Court finds that Defendants have failed to comply with discovery orders issued by this Court and that such failure was willful.

The Court, however, does not find that terminating sanctions are appropriate. Although Defendants have each failed to comply with discovery order issued by this court, the Court must take an incremental approach to discovery sanctions under Doppes v. Bentley Motors, Inc., supra, 174 Cal.App.4th 967, 992. The declarations of counsel in support of the moving and reply papers do not state that Plaintiff has been prejudiced due to the actions of Defendants.

Accordingly, the Court DENIES Plaintiff’s request for terminating sanctions.

Issue and Evidentiary Sanctions

As to Plaintiff’s request for issue and evidentiary sanctions, the Court finds that Plaintiff’s request for issue and evidentiary sanctions is procedurally defective. A motion for issue or evidentiary sanctions must include a separate statement. (Cal. Rules of Court, Rule 3.1345(a)(7). A separate statement is not required where: (1) no response has been provided to the request for discovery; or (2) when a court has allowed the moving party to submit—in place of a separate statement—a concise outline of the discovery request and each response in dispute. (Cal. Rules of Court, Rule 3.1345(b)(1)-(2).) “A separate statement is a separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue.” (Cal. Rules of Court, Rule 3.1345(c).) “The separate statement must be full and complete so that no person is required to review any other document.” (Cal. Rules of Court, Rule 3.1345(c).)

Although not raised in the opposition brief, the Court finds that Plaintiff failed to file a separate statement in support of the motion. While the depositions of Defendants have not occurred, Plaintiff did receive verified initial responses to set one of its inspection demands from Defendants Yazdi and Alboorz. (Kovalsky Decl. at Exhs. E and G.) Plaintiff therefore should have filed a separate statement. Also, while Plaintiff requests issue and evidentiary sanctions, neither the notice nor the amended notice of motion sets forth the specific issue and evidentiary sanctions sought. The amended notice merely states that Plaintiff seeks issue or evidentiary sanctions determining liability. (Amended Notice of Motion at p. 2:12-13.) A notice of motion must “specify the type of sanctions sought.” (Sole Energy Co. v. Hodges, supra, 128 Cal.App.4th 199, 207.) Plaintiff should have articulated the specific issue and evidentiary sanctions sought in the notice of motion.

The Court therefore DENIES Plaintiff’s request for issue and evidentiary sanctions against Defendants.

Monetary Sanctions

In the amended notice of motion, Plaintiff requests monetary sanctions against Defendants Yazdi and Alboorz and their counsel, Paul Marks and the law firm of Neufled Marks, a professional corporation in the amount of $10,750.00, jointly and severally. (Amended Notice of Motion at p. 4:22-5:2.) As to Defendant Taheri, Plaintiff seeks monetary sanctions against Defendant Taheri in the amount of $4,300.00. (Id.) As to the motion itself, counsel states that he spent 9 hours preparing the motion and accompanying papers and spent one (1) hour meeting and conferring concerning the motion. (Kovalsky Decl., ¶ 29.)

The Court finds that the motion is straightforward in nature and is not complex. All Defendants are represented by Paul S. Marks of Neufeld Marks, a professional corporation. Here, Defendants each disobeyed a court order to provide discovery. The Court exercises its discretion and GRANTS IN PART Plaintiff’s request for monetary sanctions in the reasonable amount of $1,650.00 (representing 3 hours of work on the motion at the rate of $550/hour). The Court reduces the amount of monetary sanctions given the straightforward nature of the motion. Monetary sanctions are to be paid by Defendants Yazdi, Taheri, Alboorz , jointly and severally, to Plaintiff within 30 days of the date of notice of this order.

The Court also ORDERS that Defendants comply with their discovery obligations under the Court’s October 30, 2023 and February 1, 2024 orders forthwith