Judge Holly J. Fujie, Case Number: 22STCV20908, Date: 2023-11-03 Tentative Ruling

This action arises out of a landlord/tenant relationship. On June 27, 2022, Plaintiff Christopher Vasell (“Plaintiff”) filed a complaint against Defendant Newsat, LLC (“Defendant”), alleging causes of action for: (1) constructive eviction; (2) tenant harassment in violation of Los Angeles Municipal Code; (3) breach of implied warranties; (4) negligence; (5) violation of the unfair competition law; (6) private nuisance; (7) bad faith retention of security deposit.

On May 16, 2023, the Court held an informal discovery conference and issued a stipulated discovery order. (08/16/23 Minute Order.)

On October 10, 2023, Plaintiff filed the instant motion to compel compliance with the August 16, 2023 Court order and filed the amended notice of the motion. No opposition is filed.

If a party fails to obey an order compelling further answers to interrogatories or responses to production requests, the court may make those orders that are just, including the imposition of an issue sanction, evidence sanction, or terminating sanction, and/or monetary sanctions, under Chapter 7 of the Discovery Act, i.e., sections 2023.010 to 2023.050 of the Code of Civil Procedure. (Code Civ. Proc., §§ 2030.290, subd. (c) [interrogatories], 2031.300, subd. (c) [production].) Similarly, if a party fails to obey an order compelling a response to requests for admission, the court may order that the matters involved in the requests be deemed admitted, and, in lieu of, or in addition to, this order, may impose a monetary sanction under Chapter 7 of the Discovery Act. (Code Civ. Proc., § 2033.290, subd. (e).) However, numerous cases hold that severe sanctions (i.e., terminating or evidentiary sanctions) for failure to comply with a court order are allowed only where the failure was willful. (See R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495; Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545; Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.)

Plaintiff propounded written discovery, set one, to Defendant on January 24, 2023, which included 116 Requests for Admissions, 164 Special Interrogatories, 87 Requests for Production of Documents, and Form Interrogatories. (Roberts Decl. ¶9.) Defendant’s responses were due on February 27, 2023. (Id. at ¶10.) Defendant served responses to the written discovery on April 7, 2023. (Id. at ¶12, Ex. 7, 8, 9, 10.) Plaintiff determined that the discovery responses were deficient and met and conferred over the telephone to discuss the deficiencies. (Id. at ¶14, Ex. 14.) On June 9, 2023, Plaintiff served unverified, partially amended responses to the Special Interrogatories and Form Interrogatories, but no amended responses to the Requests for Production of Documents or Requests for Admissions; Defendant served verifications on June 15, 2023. (Id. at ¶15, Ex. 15.)

Plaintiff’s counsel sent a meet and confer letter to Defendant’s counsel on June 26, 2023, explaining why the June 9 discovery responses were deficient and on June 29, 2023, Defendant’s counsel agreed to produce amended responses to Requests for Production of Documents, Set One, by July 14, 2023. (Id. at ¶16-17, Ex. 16,17.) On July 13, 2023, Defendant’s counsel informed Plaintiff’s counsel that he could not serve amended responses due to a flood in his office building and stated that he would serve them by July 17, 2023. (Id. at ¶18.) Plaintiff’s counsel emailed Defendant’s counsel on July 18, 2023, to attempt to resolve the issues in the discovery dispute including the identities of necessary parties and to receive code-compliant responses to Requests for Production of Documents, Set One. (Id. at ¶19, Ex. 19.) As of July 28, 2023, Defendant did not serve amended responses to the Requests for Production of Documents, Set One, and the Court held an informal discovery conference on August 16, 2023, and issued a stipulation and order as to the discovery. (Id. at ¶20, See 08/16/23 Minute Order.).

On August 24, 2023, Plaintiff’s counsel sent a meet and confer letter regarding Defendant’s failure to comply with Paragraph 2 of the discovery order. (Roberts Decl. ¶22, Ex. 20.) On September 8, 2023, Defendant served amended responses to Requests for Production of Documents, Set One but they were unverified, and Plaintiff’s counsel sent another meet and confer letter explaining the deficiencies on September 11, 2023. (Id. at ¶23, Ex. 22.) On September 21, 2023, Defendant again served amended responses to the Request for Production of Documents, Set One. (Id. at ¶24, Ex. 22.)

Plaintiff moves for a court order compelling compliance with this Court’s August 16^th order. Plaintiff seeks to compel compliance with paragraphs “2’ and “5” of this Court’s order and to compel Defendant to make a supplemental document production that complies with paragraph “5” of the discovery order. Plaintiff’s counsel asserts that he seeks to discover documents pertaining to Plaintiff’s lawsuit, including requests for repairs and documents to show Defendant’s negligence or willfulness in making such repairs. (Roberts Decl. ¶9.)

As of this date, Defendant has failed to comply with paragraphs 2 and 5 of the court’s order. Defendant did not comply with the discovery order’s instruction to Defendant’s counsel regarding service of Force Maintenance LLC. (Roberts Decl. ¶25.) Furthermore, Plaintiff’s counsel determined that the September 21, 2023 responses are missing the following: work orders pertaining to maintenance requests from other tenants in the subject building, text messages between tenants and the building manager Marialena Barrientos, complaints about the building from other tenants, emails from Bill Schwartz to Plaintiff and internal company emails concerning topics in Request for Production of Documents, Set One. (Id. at ¶29-33.) The Court finds that Defendant’s responses to the Request for Production of Documents, Set One, are insufficient, and that Defendant has failed to produce the required documents concerning the building and issues raised by the lawsuit as stipulated by the discovery order. (See 08/16/23 Minute Order, Roberts Decl. Ex. 22.) Accordingly, Defendant is ordered to comply with the August 16, 2023 Order.

Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidence, or monetary sanctions. (Code Civ. Proc., §§ 2023.010(d), (g), 2023.030; R.S. Creative, Inc., supra, 75 Cal.App.4th at 495.)

Code of Civil Procedure § 2030.040 requires that “[a] request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.” Furthermore, the notice of motion shall be supported by a memorandum of points and authorities and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought. (Code of Civ. Proc. § 2030.040.)

Issue sanctions may be imposed “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 of Civ. Proc. § 2030.030(b).)

Evidence sanctions may be imposed “by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.” (Code of Civ. Proc. § 2030.030(c).)

Plaintiff requests the Court to impose issue sanctions determining that Defendants Newsat, LLC, Leeds Property Management, Inc., and Force Maintenance LLC are to be deemed alter egos and that Plaintiff is reasonably likely to prevail on his second cause of action for tenant harassment and/or his prayer for punitive damages and Plaintiff is not required to bring a motion for leave to conduct financial discovery. Plaintiff also requests that the Court issue evidentiary sanctions that Defendants and their counsel may not introduce any evidence or argument at trial that distinguishes the liability of any of these three named defendants from each other and to preclude Defendant from introducing evidence or making argument at trial that it did not act negligently, willfully, or maliciously in failing to make repairs on the building.

It appears that Plaintiff’s counsel and Defendant’s counsel engaged in numerous efforts to meet and confer to address the deficiencies in Defendant’s responses to the Request for Production of Documents, Set One. The Court acknowledges that Defendant previously stated it could not serve amended responses due to a flood in his office building. (Roberts Decl. ¶18, Ex. 8) Defendant ultimately served its amended response to the Requests for Production of Documents, set one, on September 21, 2023, after the August 16^th Court Order. (Id. at ¶24, Ex. 22.) Based on further review of the evidence, the Court finds that Defendant’s failure to comply with the Court’s Order constitutes a willful violation. Defendant has failed to file an opposition and explain to the Court why it failed to comply with the Court’s order or provide a response that its actions were not willful or a flagrant misuse of the discovery process. While issue and evidentiary sanctions may affect the outcome of the litigation process, Defendant has been given multiple opportunities to comply with discovery since Plaintiff’s counsel attempted to meet and confer several times with Defendant’s counsel to correct the deficiencies in the responses. Defendant has exhausted its chances to comply with discovery after failing to comply with the Court’s order. Accordingly, Plaintiff’s request for issue and evidentiary sanctions is granted.

Monetary sanctions may be imposed “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…unless [the Court] finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code of Civ. Proc. § 2030.030(a).)

Plaintiff requests monetary sanctions against Defendant in the amount of $5,000.00. Plaintiff renews this request in his amended motion. (Amended Motion, pg. 2.) However, neither the motion, amended motion, nor counsel’s declaration state how many hours counsel spent preparing this motion and costs incurred for purposes of determining whether the $5,000 sanctions award is reasonable and supported. Moreover, the evidentiary sanctions ordered above are sufficiently serious as to provide adequate compensation to Plaintiff for these discovery abuses. As such, Plaintiff’s request for monetary sanctions is denied.

The Court GRANTS the motion to compel compliance and ORDERS Defendant to comply with this Court’s August 16, 2023 Order.

Defendant’s request for issue and evidentiary sanctions is GRANTED and the request for monetary sanctions against Defendant is DENIED.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court