Judge: Mel Red Recana, Case: 20STCV46605, Date: 2024-07-09 Tentative Ruling
All rulings shown here are TENTATIVE ONLY, and thus oral argument WILL be heard. All Counsel are still required to attend.
Case Number: 20STCV46605 Hearing Date: July 9, 2024 Dept: 45
Hearing date:
07/09/2024
Moving Party:
All Plaintiffs
Responding
Party: All Defendants
Plaintiffs’
Motion for an Order Awarding Monetary and Terminating Sanctions
The Court considered the moving
papers, opposition, and reply. Plaintiffs’ Motion for an Order Awarding
Monetary and Terminating Sanctions is DENIED. The parties are
ordered to meet and confer over the following:
·
The production of WhatsApp messages
between Harold Herskowitz and Afton Properties, Inc. to determine whether these
messages were produced.
·
The production of all internal
emails from Afton Properties, Inc. concerning the subject property and the
instant suit.
Background
This
case was commenced on December 7, 2020 when a Complaint was filed by several
plaintiffs against three defendants concerning the conditions of apartment
units located at 360 N. Orange Grove, Ave., Los Angeles, Ca 90036 (the
Premises). The plaintiffs subsequently filed a First Amended Complaint (FAC) on
September 29, 2022 that alleged eight causes of action against three
defendants: (a) Afton Properties, Inc. (Afton); (b) Harold Herskowitz
(Herskowitz); and (c) My Management Co. Inc. (My Management).
The
FAC alleges that Afton and My Management, who managed the Premises at different
points in time, and Herskowitz, who owned the Premises, failed to provide a
habitable premises and failed to address critical repairs including a “red
tagged” gas furnace. (FAC, ¶¶12-14.)
The
motion before the Court now concerns alleged discovery violations. Plaintiffs
file a Motion for an Order Awarding Monetary and Terminating Sanctions (the
Motion). All Defendants oppose the Motion, and Plaintiffs file a reply.
Discussion
Legal Standard
Although
CCP § 2023.030 provides the Court the power to dismiss an action as a sanction
for misuse of the discovery process, “The sanction of dismissal…against the
disobedient party is ordinarily a drastic measure which should be employed with
caution.” (Victory Valley Union High School District v. Superior Court of
San Bernardino County (2023) 91 Cal.App.5th 1121, 1158-1159.) Misuse of the
discovery process includes the failure to respond to an authorized method of
discovery or disobeying a court order to provide discovery. (CCP § 2023.010(d)
and (g).) Dismissal is a proper sanction to punish the failure to comply with a
rule or an order only if the court's authority cannot be vindicated through the
imposition of a less severe alternative. (Rail Services of America v. State
Comp. Ins. Fund (2003) 110 Cal. App. 4th 323, 331.)
Evidence or issue sanctions may be imposed only
after parties violated discovery orders compelling further responses, except in
exceptional circumstances, including where there was sufficiently egregious
misconduct regarding a failure to respond to discovery, or a prior discovery
order would be futile. (New
Albertsons, Inc. v. Sup. Ct. (2008) 168 Cal.App.4th 1403, 1426.)
Terminating
sanctions are authorized where the evidence shows that less severe sanctions
will not be successful in compelling discovery responses. (Mileikowsky v.
Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-80.)
Analysis
In
their moving papers, Plaintiffs contend that Defendants failed to provide
certain documents during discovery destroyed certain documents in violation of
discovery statutes. More specifically, Plaintiffs allege that Defendants failed
to provide:
·
Emails from Afton concerning the Premises and the instant lawsuit; and
·
Any communications between Herskowitz and Afton.
(Moving Papers, 2:25-28.)
Further,
Plaintiffs contend that after sending a notice of impending litigation and a
Notice of Preservation of Evidence to Defendants in July of 2020, Defendants
were on notice to preserve any preserve any evidence. (Moving Papers, 2:18-20.)
Upon
opposition Defendants counter, arguing that internal emails from Afton were
produced. Defendants also argue that Herskowitz’s WhatsApp messages were
produced as well. Attached to the opposition papers, Defendants provide several
email chains and WhatsApp messages. However, there are few internal Afton
messages included, and it is unclear who the WhatsApp messages are between. One
of the communicators is clearly Herskowitz, but it is unclear who the other
party communicating is. (See Declaration of Gregory Kim, hereinafter, Kim
Decl., Exh. 1, Bates Nos. 03323 – 03425.)
Defendants
argue that the Motion is meritless, the Court disagrees. Although it is clear
that at least some of the documents alleged to have been destroyed are
accessible and have been produced, after review, it appears that not all
documents requested were produced. Attached to Defendants’ opposition papers
there are five pages of internal emails (see Kim Decl., Bates Nos. 02153-02156)
from within Ashton, however, the emails date back to 2017, and Plaintiffs point
out that Ashton managed the Premises until August of 2020. Plaintiffs contend
that they lodged several complaints regarding the habitability of the Premises,
Defendant’s contention that all internal Ashton emails have been produced is
unpersuasive. Moreover, Plaintiffs contend that the WhatsApp messages produced
are not between Herskowitz and Afton as requested. At this time, it is unclear
who one of the parties is in the WhatsApp communications, the documents
provided only identify Herskowitz.
Therefore,
the parties are ordered to meet and confer regarding (1) the production of
WhatsApp messages between Harold Herskowitz and Afton Properties, Inc. to
determine whether these messages were produced and (2) the production of all internal emails from Afton
Properties, Inc. concerning the subject property and the instant suit.
Conclusion
Plaintiffs’ Motion for an Order Awarding Monetary and
Terminating Sanctions is DENIED. The parties are ordered to meet
and confer over the following:
·
The production of WhatsApp messages
between Harold Herskowitz and Afton Properties, Inc. to determine whether these
messages were produced.
·
The production of all internal
emails from Afton Properties, Inc. concerning the subject property and the
instant suit.
It
is so ordered.
Dated: July 9, 2024
_______________________
MEL RED RECANA
Judge of the
Superior Court