Judge: Melvin D. Sandvig, Case: 21CHCV00349, Date: 2023-04-05 Tentative Ruling
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Case Number: 21CHCV00349 Hearing Date: April 5, 2023 Dept: F47
Dept. F47
Date: 4/5/23
TRIAL DATE: 6/26/23
Case #21CHCV00349
MOTION FOR
TERMINATING SANCTIONS
Motion filed on 12/5/22.
MOVING PARTY: Plaintiff Vaping360
GMBH
RESPONDING PARTY: Defendant Newhere Inc. dba
CBDFX.COM aka Newhere Products aka Newhere Brands
NOTICE: ok
Additionally,
Plaintiff requests an order imposing monetary sanctions against Defendant and
its counsel of record, Ashour Yehoshua, APC, in the
amount of $2,310.00 pursuant to CCP 2023.030(a).
RULING: The request for terminating sanctions is
denied. In the alternative, Defendant is
ordered to provide further responses, without objections, to discovery, as set
forth below, within 10 days.
Additionally, monetary sanctions are imposed against Defendant and
Defendant’s counsel in the amount of $2,310.00, also payable within 10
days. Further, Defendant and its counsel
are again ordered to pay the sanctions imposed by the Court in its 1/3/23
ruling within 10 days.
This action arises out of the alleged breach of a contract
between Plaintiff VAPING360 GMBH (Plaintiff) and Defendant NEWHERE, INC. D/B/A
CBDFX.COM, A/K/A NEWHERE PRODUCTS, A/K/A NEWHERE BRANDS (Defendant) for use of
Plaintiff’s website hyperlinks to promote and sell Defendant’s products. Plaintiff contends that the contract
stipulated that Plaintiff would receive commission based on the use of the
hyperlinks from Plaintiff’s website to Defendant’s website to purchase
Defendant’s products.
In ruling on the motion regarding Requests for
Admissions, the Court stated:
“Even if the further responses
served on 12/8/22 had been verified, they are deficient as to the Requests for
Admissions at issue. These further responses still include the meritless
objections originally made in response to the requests. Defendant has failed to
show that the requests are vague, ambiguous, oppressive and/or burdensome. If
Defendant believes that the requests assume facts not in evidence and/or which
are not true, Defendant has the option to deny the requests. Defendant’s
further responses to the subject requests are incomplete and evasive as they
appear to admit the requests while including a confusing qualification.
Plaintiff is entitled to responses which are as complete and straightforward as
the information reasonably available to Defendant permits. CCP 2033.220(a).”
. .
.
“If any of Defendant’s further
responses to the subject Requests for Admissions are not unqualified
admissions, Defendant is also ordered to serve further responses to Form
Interrogatory 17.1 in relation to such requests.”
(See 1/3/23 Minute Order,
p.2).
In ruling on the motion regarding Requests for Production
of Documents, the Court stated:
“Even if the further responses
served on 12/8/22 had been verified, they are deficient as to Requests 16-20
and 26 because these further responses still include the meritless objections
originally made in response to the requests. Defendant has failed to show that
these requests are vague, ambiguous, overbroad, uncertain, unintelligible,
unduly burdensome, oppressive, harassing and/or argumentative. As such,
Plaintiff is entitled to further verified responses without objection as to
Requests 16-20 and 26. See CCP 2031.310(a)(3).”
(See 1/3/23 Minute Order,
p.4).
In ruling on the motion regarding Special
Interrogatories, the Court stated:
“Even if the further responses
served on 12/8/22 had been verified, they are deficient as to Special
Interrogatories 4 through 8 because these further responses still include the
meritless objections originally made in response to the interrogatories.
Defendant has failed to show that these special interrogatories are vague,
ambiguous, overbroad, uncertain, unintelligible and/or argumentative. As such,
Plaintiff is entitled to further verified responses without objection as to
Special Interrogatories 4, 5, 6, 7 and 8. See CCP 2030.300(a)(3).”
(See 1/3/23 Minute Order,
p.5).
Despite the foregoing, and after the deadline imposed by
the Court, Defendant merely served verifications for the responses served on 12/8/22. (See Ross Decl. ¶5; Ashour Decl.
¶4). The Court finds it difficult to
believe in light of the clear statements in the Court’s 1/3/23 ruling that the
12/8/22 further responses included meritless objections and that the responses
were still deficient that Defendant’s counsel truly believes that merely providing
verifications would comply with the Court’s 1/3/23 order. (See Ashour Decl. ¶6). Defendant’s counsel then states that “[i]n
good faith, on March 13, 2023 [almost 2 months after the deadline imposed by the
Court in its 1/3/23 ruling], Defendant provided new further responses with the
objections removed, thereby making this motion moot.” Id.
However, Defendant only provided further responses to the Special
Interrogatories, not the Requests for Admissions or Requests for Production of
Documents. (See Ashour Decl. ¶6,
Ex.C; Reply, p.3:21-28).
Due to the extreme nature of terminating sanctions and
the policy of having cases resolved on their merits, the Court finds that terminating
sanctions are not yet warranted against Defendant. However, if Defendant continues to fail to
comply with its discovery obligations and/or this Court’s orders, such conduct
will be taken into consideration by the Court in ruling on future discovery
and/or sanctions motions. The Court
finds that Plaintiff is entitled to a further award of monetary sanctions
against Defendant and its counsel for their continued failure to comply with
their discovery obligations. See
CCP 2023.030(a); CCP 2030.300(e); CCP 2031.310(i); CCP 2033.290(e). The Court finds the $2,310.00 in sanctions
requested by Plaintiff to be reasonable based on 6 hours to prepare the motion,
review the opposition, prepare the reply and prepare for and attend the hearing
multiplied by $375/hour plus the $60.00 filing fee. (See Ross Decl. ¶7).
Based on the foregoing, Defendant is ordered to provide
further responses, without objections, to Requests for Admissions, Set 1,
numbers 18, 20, 23, 25, 28 and 30, and Requests for Production of Documents,
Set 1, numbers 16-20 and 26, within 10 days.
Additionally, sanctions are imposed against Defendant Newhere Inc. dba
CBDFX.COM aka Newhere Products aka Newhere Brands and its counsel, Ashour
Yehoshua, APC, in the amount of $2,310.00, payable within 10 days. If not already paid, Defendant and its
counsel are also ordered to pay the monetary sanctions previously imposed by
the Court on 1/3/23 within 10 days.