Judge Holly J. Fujie, Case Number: BC546925, Date: 2023-10-05 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

MOVING PARTY: Cross-Complainants Michael Schwab and Big Sky Venture Capital II, LLC (collectively, the “Cross-Complainants”)

This action arises out of a business relationship. On May 4, 2023, a judgment (the “Judgment”) was entered in favor of Cross-Complainants against Plaintiff/Cross-Defendant Nicholas Behunin (“Behunin”).

On January 5, 2024, this Court granted Cross-Complainants’ Motion to Compel Responses to Post-Judgment Requests for Production and Interrogatories.

On January 30, 2024, Cross-Complainants filed the instant Motion for Sanctions against Behunin. The opposition was due on March 1, 2024. As of March 11, 2024, no opposition has been filed.

Pursuant to Code of Civil Procedure Section 2023.010, “[m]issues of the discovery process include, but are not limited to, the following:... (d) Failing to respond or to submit to an authorized method of discovery.... (g) Disobeying a court order to provide discovery....” (Code Civ. Proc., § 2023.010.)

Furthermore, “[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. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2023.030, subd. (a).)

Lastly, “[t]he court may impose a contempt sanction by an order treating the misuse of the discovery process as a contempt of court.” (Code Civ. Proc., § 2023.030, subd. (e).)

Cross-Complainants’ move for an order (1) finding Behunin failed to comply with this Court’s January 5, 2024 order, in providing, without objection, full and complete written responses to Cross-Complainants’ post-judgment request for production of documents and interrogatories; (2) awarding monetary sanctions against Behunin in the amount of $2,450.00 for attorneys’ fees reasonably incurred in bringing this Motion; and (3) to show cause as to why this Court should not issue a contempt sanction.

Cross-Complainants contend Behunin was served a copy of the January 5, 2024 order on January 10, 2024. (Chung Decl., ¶ 3, Ex. B.) Cross-Complainants further contend as of the date of this present motion, Behunin has not served written responses or produced documents as ordered by this Court. (Id. at ¶ 4.) As such, Cross-Complainants argue Behunin continues to frustrate and obstruct their legitimate efforts to enforce the Judgment.

Cross-Complainants’ counsel has spent (1) 4.5 hours conducting research and drafting the papers for this present motion and (2) anticipate an additional 30 minutes preparing and attending the hearing at the billing rate of $400.00 per hour. (Chung Decl., ¶ 5.) Cross-Complainants’ counsel also avers David H. Schwartz spent 45 minutes reviewing, editing, and discussing with him the draft version of the Motion for Sanctions at a billing rate of $600.00 per hour but only charged $450.00. (Id.) Thus, the total amount in sanctions requested in $2,450.00.

The court finds that Behunin has engaged in misuse of the discovery process warranting the requested sanctions. First, Behunin failed to obey this Court’s January 5, 2024, despite having notice of this ruling. Second, Behunin did not oppose the motion to compel, which resulted in the present order at issue. Finally, Behunin was served with notice of this instant motion and again did not file an opposition.

Therefore, Cross-Complainants’ Motion for Sanctions is GRANTED in the amount of $2,450.00. Behunin is ordered to pay $2,450.00 in monetary sanctions within 20 days of this order. The Court exercises its discretion not to set an Order to Show Cause re Contempt Hearing.

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