Judge: Margaret L. Oldendorf, Case: 21GDCV01152, Date: 2024-02-01 Tentative Ruling

Case Number: 21GDCV01152    Hearing Date: February 1, 2024    Dept: P

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

          I.        INTRODUCTION

          This is an action for negligence and trespass involving two neighbors. Plaintiff Robert J. Kilman (Kilman) alleges that on September 5, 2019, a landslide occurred, causing extensive damage to his property. He alleges that the landslide was caused by negligence of the neighbor located directly above him, Defendant Ara Najarian (Najarian). He alleges that a sprinkler line broke and leaked for several hours on Najarian’s property, which subsequently caused damage to Kilman’s property. The complaint contains three causes of action: (1) negligence, (2) trespass and (3) nuisance.

Defendant Najarian filed an ex parte application to continue trial on November 2, 2023. The Court granted the ex parte application on November 3, 2023, continuing the trial until March 5, 2024 and adopting the conditions set forth in Plaintiff Kilman’s response brief to the ex parte. Specifically, the response brief set several discovery and other deadlines agreed to by both parties in exchange for Plaintiff Kilman agreeing to continue the trial.

Before the Court is a motion by Plaintiff Kilman for terminating sanctions as to Defendant Najarian, for failing to comply with the discovery deadlines as to depositions and written discovery as provided by the November 3, 2023 Minute Order referencing the response brief.

Kilman filed his motion on December 6, 2023. It is unopposed.

For the reasons that follow, the motion for terminating sanctions is GRANTED.

II.       LEGAL STANDARD

Code Civ. Proc. Section 2023.010(g) provides that disobeying a court order is conduct subject to sanction. (CCP § 2023.010(g).) CCP Section 2023.010(d) provides that failing to respond to an authorized discovery method is a misuse of the discovery process. (CCP § 2023.010(d).) CCP Section 2023.010(g) provides that disobeying a court order to provide discovery is a misuse of the discovery process. (CCP § 2023.010(g).)

Code Civ. Proc. Section 2023.020(d) provides for the issuance of a terminating sanction. Such a sanction may involve any of the following: (1) an order striking out the pleading or parts of the pleading; (2) an order staying the action until an order is obeyed; (3) an order dismissing an action or part of an action; or (4) an order rendering default judgment against a party. (CCP § 2023.020(d).)

A motion to strike an answer may be granted when a defendant willfully fails to obey the discovery order of the court. (Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611.) Where the evidence shows that less severe sanctions would not produce compliance with the discovery rules, there is justification in imposing the ultimate sanction. (Mileikowsky v. Tenet Health.rystem (2005) 128 Cal.App.4th 262, 279-280.) “The refusal to reveal material evidence is deemed to be an admission that the claim or defense is without merit.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793.)

III.     ANALYSIS

i. Terminating Sanctions

          Plaintiff Kilman urges terminating sanctions should be issued against Najarian for his failure to comply with the conditions set forth in the response brief, which were adopted by the Court in its November 3, 2023 Minute Order. (11/3/23 Minute Order.)  Specifically, Kilman urges that Najarian’s answer be stricken, and his default entered. (Motion p. 7: 4-5.)

The agreed-upon conditions to the trial continuance were: (1)The deposition of Marco Jaramillo on November 6, 2023; (2) By November 10, 2023, Defendant must answer the written discovery served by Plaintiff in October 2022 in good faith without objections; (3) Defendant must produce Mr. Najarian no later than November 17, 2023 for deposition unless the parties stipulate to liability of the Defendant; (4) Defendant to produce Mr. Simantob for deposition no later than December 1, 2023; and (5) A mediation on either December 26, 28 or 29 with Robert Mann.

Kilman’s counsel, Bradley Snyder, states that only the first condition, the deposition of Mr. Marco Jaramillo was complied with. (Motion, p. 5: 2-5.) More specifically, he urges as of the date of this motion, Najarian has not served his discovery responses, appeared for his own deposition or produced his expert for deposition. (Id.)

          Mr. Snyder declares that he attempted to resolve the missed discovery deadlines with defense counsel prior to making this motion. (Snyder Decl. ¶¶ 8-10, see Exh. 3-8.) Snyder declares that Defendant Najarian did not appear for a deposition before November 17, 2023. (Snyder Decl. ¶ 12.) Snyder declares that Mr. Simantob, Defendant’s expert, was not produced for deposition before December 1, 2023. (Snyder Decl. ¶ 13.) Snyder further declares that no responses to the written discovery, served over a year ago on Defendant on October 2, 2022, have been received. (Snyder Decl. ¶¶ 11,14, see also Motion p. 6: 25-28.)

The Court concludes that defendant Najarian has willfully disobeyed the discovery order of the court. Accordingly, the Court strikes Najarian’s answer and orders his default entered.

          ii. Issue or Evidence Sanctions

          In light of the Court’s ruling on the motion for terminating sanctions, Kilman’s request for issue and evidence sanctions is moot.  The Court notes that issue and/or evidence sanctions would not be available here, because Kilman did not file and serve a separate statement. Per California Rules of Court 3.1345(a)(7), a separate statement is required for a motion for issue or evidence sanctions.

          iii. Monetary Sanctions

Kilman urges that he is entitled to monetary sanctions due to Najarian’s failure to  comply with the Court’s orders.  Kilman’s attorney, Brad Snyder, provides his declaration in support. (Snyder Declaration.) Snyder declares that his hourly rate is $475. (Snyder Decl. ¶ 16.) He declares that the other attorney representing Kilman in this matter, Ryan Snyder, bills $425 in this case. (Snyder Decl. ¶¶ 17-19.) He attaches a readout of the time the firm has billed in connection with this motion. (Snyder Decl. ¶ 20.) In total, he declares that 7.5 hours were spent preparing the motion, 2.5 hours are estimated for reply and 2 hours are anticipated for the hearing. (Id.) He also spent $60.00 filing the motion.

The court finds that both hourly rates are reasonable. The Court also finds that the time expended and anticipated reasonable. However, the Court declines to award time for reply, as the motion is unopposed. Accordingly, the Court awards $4,307.50 in sanctions.

iv. Deem Truth of Matters Admitted

In light of the Court’s ruling imposing terminating sanctions, this aspect of Kilman’s motion is also moot.

IV.     CONCLUSION AND ORDER

          Plaintiff Kilman’s motion for terminating sanctions is GRANTED. Defendant Najarian’s answer is stricken, and his default is entered. 

The Court awards monetary sanctions of $4,307.50 to Plaintiff Kilman in connection with this motion. Defendant Najarian is ordered to pay Kilman monetary sanctions of $4,307.50 within 20 days of notice of this order.

A default prove-up hearing is scheduled for March 5, 2024.  The final status conference and trial dates are vacated.

Kilman is ordered to provide notice of this ruling.

Dated:                                                              _______________________________

                                                                              MARGARET L. OLDENDORF

                                                                       JUDGE OF THE SUPERIOR COURT