Judge Lynne M. Hobbs, Case Number: 22STCV22185, Date: 2024-06-12 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 22STCV22185, Date: 2024-06-12 Tentative Ruling

Case Number: 22STCV22185 Hearing Date: June 12, 2024 Dept: 61

JOHN NEAL DROOYAN vs MARATHON HVAC SERVICE, INC., A CORPORATION

TENTATIVE

Defendant Marathon HVAC Service, Inc.’s Motion to Compel Compliance with Court Order of December 6, 2023, is GRANTED. Plaintiff is once again directed to permit the inspection of the property according to the terms of this court’s December 6, 2023 order. Sanctions are awarded against Plaintiff in the amount of $8,764.50.

Defendant to provide notice.

DISCUSSION

“Except as provided in subdivision (j), if a party fails to obey an order compelling further response, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of, or in addition to, that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).” (Code Civ. Proc. § 2031.310, subd. (i).)

Defendant Marathon HVAC Service, Inc. (Defendant) moves to compel Plaintiff John N. Drooyan’s (Plaintiff) compliance with this court’s order of December 6, 2023, compelling the inspection by destructive testing of certain portions of Plaintiff’s property. Defendant argues that following this court’s order, Defendant gave Plaintiff notice on February 26, 2024, via email, US Mail, and fax that the inspection would take place on March 11, 2024. (Ortega-Smith Decl. ¶ 8, Exh. D.) Plaintiff did not respond to this notice, and on March 11, 2024, when Defendant’s counsel and the destructive testing crew arrived at the property for inspection, Plaintiff did not allow the inspection to go forward, or respond to their numerous calls and emails seeking entry. (Ortega-Smith Decl. ¶¶ 11–15.)

Plaintiff in opposition denies that he was served with the notice of inspection, denies that Defendant ever consulted him about the date of inspection before sending the notice, and claims that the first time he saw the notice of inspection was in connection with the present motion. (Drooyan Decl. ¶¶ 12–14.)

Defendant in reply presents two emails, the first dated January 31, 2024, and the second dated February 15, 2024, in which Defendant’s counsel sought dates of availability for the court-ordered inspection, to which Plaintiff did not respond. (Supp. Ortega-Smith Decl. ¶¶ 3–7, Exhs. A, B.) Defendant also presents evidence that they attempted to fax February 15, 2024 email to the number indicated on Plaintiff’s state bar profile and on prior pleadings. (Ortega-Smith Decl. ¶¶ 6–9, Exh. C.) It was only after Plaintiff failed to respond to these emails tat Defendant served the notice for inspection on March 11, 2024. (Supp. Ortega-Smith Decl. ¶ 11.) Defendant presents a copy of the email in which the notice was served, as wells as the fax delivery information for the of the same notice, and also a proof of mailing of the notice to Plaintiff’s address. (Supp. Ortega-Smith Decl. ¶¶ 11–18, Exhs. D–F.)

Plaintiff has failed to comply with this court’s order of December 6, 2023. Plaintiff had ample notice of the scheduled inspection, and ample opportunity to confer regarding the same, as indicated by the evidence presented by Defendant. Plaintiff’s bare denials of notice offered in his opposition are not credible when weighed against the evidence presented by Defendant.

The motion is therefore GRANTED, and Plaintiff is once again directed to permit the inspection of the property according to the terms of this court’s December 6, 2023 order.

Defendant seeks monetary, issue, and evidentiary sanctions associated with Plaintiff’s violation of the prior order. (Motion at pp. 6–7.) These sanctions include $11,025.50 in monetary sanctions, and orders precluding Plaintiff from introducing evidence of liability or damages, which effectively amount to terminating sanctions. (Motion at pp. 7–10.) But ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. (See Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) Given the single violation identified, and the simple remedy for same — for Plaintiff to permit the inspection as ordered — the proper remedy is the award of monetary damages associated with this motion and the defunct inspection that Plaintiff did not permit.

The $11,024.50 that Defendant seeks represents several discrete items:

· $2,260.00 in attorney fees and costs associated with this court’s prior order granting Defendant’s motion to compel inspection, when such sanctions were denied in the previous order

· $966 in attorney fees associated with attending the abortive inspection of March 11, 2024;

· $1,680.00 in expert fees, 5.6 hours at $300 per hour, for the March 11, 2024 inspection;

· The $3,283.50 cancellation fee charged by the expert;

· $2,835.00 in fees and costs associated with this motion, representing 13.5 hours of attorney work at $210 per hour, plus a $60 filing fee.

(Ortega-Smith Decl. ¶¶ 16–22.) Although the court has little reason to revisit the prior sanctions order, Defendant is entitled to sanctions to compensate for the costs of bringing this motion and attending the March 11, 2024 inspection that Plaintiff did not permit, representing sanctions in the amount of $8,764.50.