Judge: Michael Shultz, Case: 23STCV20791, Date: 2025-05-22 Tentative Ruling
DEPARTMENT 40 - MICHAEL J. SHULTZ - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call.
Case Number: 23STCV20791 Hearing Date: May 22, 2025 Dept: 40
23STCV20791
Hand-in-Hand Homecare, Inc., et al v. Lakeview Terrace Skilled Nursing
Facility, LLC, et al.
Thursday,
May22, 2025
[TENTATIVE]
ORDER GRANTING PLAINTIFFS’ MOTION TO COMPEL DEFENDANT, ELLIOT ZEMEL’S FURTHER
RESPONSES TO PLAINTIFFS’ REQUEST FOR PRODUCTION OF DOCUMENTS; REQUEST FOR
SANCTIONS (Res. No. -3439)
[TENTATIVE]
ORDER
I.
BACKGROUND
The
first amended complaint alleges Plaintiffs agreed to provide caregivers to
Defendants pursuant to a written and oral staffing agreement. Defendants failed
to pay $49,931.50. Plaintiffs allege claims for breach of written and oral
contract, conversion, unjust enrichment and common counts.
II.
ARGUMENTS
Plaintiffs
served request for production of documents, set one, on Defendants, Yehuda
Schmukler and Elliot Zemel (“Defendants”) on September 5, 2024. After responses
were due, both Defendants requested an extension to respond without objections.
Plaintiffs agreed to the extension but without the right to object.
Defendants
served responses on October 22, 2024, but objected some of the requests. After
meet and confer, Defendants agreed to serve supplemental responses on December
2, 2024. Defendants neglected to respond
to the same requests at issue and refused to produce documents as agreed. After
the parties met and conferred again, Defendants refused to supplement further. Plaintiffs
request imposition of sanctions.
In opposition, Defendants argue that Plaintiffs
did not provide adequate notice for these motions and failed to schedule an IDC
with the court. Defendants gave Plaintiffs concessions in responding to
Defendants’ discovery, but Plaintiffs would not reciprocate. Defendants contend
that Plaintiffs did not exercise restraint and understanding given the sudden
death of defense counsel’s five-year old son less than 10 months prior, and the
Jewish holiday season.
Plaintiffs
fail to explain why Plaintiffs need privileged material. Despite objections,
Defendants responded that the requested documents do not exist. Any documents
withheld, if any, are privileged communications. Imposition of sanctions would
be unjust under the circumstances.
In reply,
Plaintiffs argue that Defendants’ April 14, 2025, supplemental responses to
requests are not code-compliant because they are unverified. Defendants have
not produced documents.
III.
DISCUSSION
Defendants’
contention that Plaintiff did not give proper notice of motion is without
merit. Defendants have engaged in two IDCs with the court and have supplemented
the responses more than once after repeated efforts to meet and confer;
Defendants cannot contend that any defect in the notice has resulted in
prejudice. (Carlton
v. Quint (2000) 77 Cal.App.4th 690, 697 ["It is well settled that
the appearance of a party at the hearing of a motion and his or her opposition
to the motion on its merits is a waiver of any defects or irregularities in the
notice of motion. (Citations.) This rule applies even when no notice was given
at all.”].)
The
document requests remaining at issue request a list of patients/residents of
Lakeview, transfers of patients/residents from Lakeview, and documents
reflecting payments Lakeview received from any source relating to the
patients/residents served (although the parties agreed to the redaction of
names.)
The
responses to requests 49-51 maintain that Defendants cannot locate documents
because they no longer have possession, custody or control of responsive
documents. As Plaintiffs point out, Defendants are required to set forth the
name and address of any person or organization believed to have possession,
custody, or control. The responses were also unverified.
Plaintiffs
are entitled to sanctions for Defendants’ failure to show substantial
justification for their failure to provide Code-compliant responses and
production. (Code Civ. Proc., § 2031.210 subd. (h).) Sanctions of $1,977.50 for
the first motion ($425 x 4.7 hours motion, reply, and appearance) and $1,700
for the second motion ($425 x 4 hours motion and reply.)
IV.
CONCLUSION
Based
on the foregoing, Plaintiffs’ two motions to compel responses to request for
production of documents served on Defendants, Yehuda Schmukler and Elliot Zemel,
are GRANTED. Both defendants are ordered to serve further, verified, and
Code-compliant responses and production of documents without objections to
requests 38, 39, 41-48 and 49-51 within 10 days. Defendant Schmukler and
counsel, jointly and severally, are ordered to pay $1,977.50 for the first
motion to Plaintiff’s counsel within 10 days. Defendant Zemel and counsel,
jointly and severally, are ordered to pay $1,700 to Plaintiff’s counsel within
10 days.