Judge: Jon R. Takasugi, Case: 22STCV03554, Date: 2023-10-26 Tentative Ruling

Case Number: 22STCV03554    Hearing Date: October 26, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Plaintiffs’ motion for terminating sanctions is DENIED IN PART, GRANTED IN PART.

Plaintiff’s motion is DENIED as to the request for terminating and issue sanctions. Plaintiff’s motion is GRANTED as to the request for monetary sanctions. Each Defendant is sanctioned, jointly and severally with counsel, $1,750, due within 20 days of entry of this judgment.

On 1/28/2022, Plaintiff Fifth Street Funding, Inc. and Mideb Nominees, Inc. (collectively, Plaintiffs) filed suit against Clayton’s Public House, LP, EPG Development, Inc. dba Clayton’s Construction, Elizabeth Peterson Group, Inc., Tony Gower Pubs, LLC, Elizabeth Peterson, Tony Gower, and Annette Zilinskas, alleging: (1) breach of written lease; (2) breach of written lease; (3) fraud; (4) quantum meruit; (5) open book account; (6) declaratory relief; (7) declaratory relief; and (8) breach of written guaranty.

            Now, Plaintiffs move for terminating sanctions against Defendants Clayton’s Public House, LP; Tony Gower; Tony Gower Pubs, LLC; Elizabeth Peterson (collectively, Nonresponsive Defendants) EPG Inc.; EPG Development Inc.; and Annette Zilinskas (Responsive Defendants)

Discussion

            Plaintiffs argue that terminating sanctions are warranted here based on Defendants failure to comply with the Court’s 4/24/2023 order (i) granting Plaintiffs’ Motions to Compel Further Responses from each Defendant and (ii) ordering Defendants to respond to discovery within 45 days, among other things.

            In the Court’s 4/24/2023 order, the Court directed Defendants to provide verified Code-compliant discovery responses by 6/15/2023. Instead, on 6/15/23, Defendants Clayton’s Public House, LP; Tony Gower; Elizabeth Peterson; EPG Inc.; EPG Development Inc.; and Annette Zilinskas served unverified supplemental responses, while Defendant Tower Gower Pubs, LLC served no supplemental responses at all.

After repeated meet and confer efforts by Plaintiffs, on 7/7/2023—nearly a month later—Defendants Elizabeth Peterson Group Inc.; EPG Development Inc.; and Annette Zilinskas served verifications. However, Plaintiffs contend that Nonresponsive Defendants have refused to provide verifications and now claim that the discovery responses they served on June 15, 2023 are “inaccurate.” As of Plaintiffs’ filing, Nonresponsive Defendants had failed to provide any verified supplemental responses in direct violation of the Court’s Order.

In opposition, Defendants indicate that all outstanding responses have since been provided. As such, the Court does not find terminating sanctions to be warranted.

However, the Court still finds monetary sanctions to be warranted, given Defendants’ abuses of the discovery process.

As for EGP, Inc., EPG Developments, Inc. and Annette Zilinskas, verified responses were served nearly a month late on 7/7/2023, thus violating the Court-ordered directive to serve discovery responses by 6/15/2023. To the extent that issues arose that Defendants could not abide by this deadline, they should have sought relief with the Court. Defendants may not fail to meet Court-ordered deadlines, and then avoid sanction by providing responses at some time of their choosing.

As for Defendants Clayton’s Public House, LP., Tony Gower, Tony Gower Pubs, LLC. and Elizabeth Peterson, Defendants contend that they provided timely verified responses but then had to rescind the responses and requested more time to provide additional responses. While Defendants contend that they can identify these reasons in an in camera hearing, this ignores the fact that Defendants were under a Court order to provide verified responses by 6/15/2023. If issues appeared that required the responses to be rescinded and additional time was needed, Defendants inarguably should have sought relief with the Court at the time the issues arose. Defendants cannot unilaterally determine that “good cause existed as reason for an extra extension related to the discovery.’ (Opp., 4: 24-26.)

Each Defendant is sanctioned, jointly and severally with counsel, $1,750 ($350/hr x 5 hr), due within 20 days of entry of this judgment.

It is so ordered.

Dated:  October    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.