TENTATIVE RULING

Calendar:  3

Date:     1/13/2023

Case No: 21 GDCV00845 Trial Date:  May 8, 2023 

Case Name: CAC Motors DBA ZR Investment v X3 AST Consulting, Inc, et al.

ORDER TO SHOW CAUSE

Moving Party: Defendant Sleiman Timani   

Responding Party: Plaintiff CAC Motors dba ZR Investment      

ORDER TO SHOW CAUSE: 

Order to Show Cause Re:  Why Monetary Sanctions in the Sum of $900 Should Not Be Imposed on Plaintiff’s Counsel Pavel Kouprine Pursuant to CCP section 128.5, Rules of Professional Conduct Rule 3.3, and Business and Professions Code section 6068 for Counsel’s Failure to Bring the Extension on the Motion to Compel Filed on 09/26/2022 to the Court’s Attention, and for Continuing to Pursue the Argument that the Motion to Compel was Not Timely.  

FACTUAL AND PROCEDURAL BACKGROUND:

Plaintiff CAC Motors dba ZR Investment (Plaintiff) brings this action against defendants X3 AST Consulting, Inc. (X3 AST Consulting), Sleiman A. Timani, and Marques Johnson, alleging that plaintiff is engaged in the automobile export business, and entered into a business relationship with defendant X3 AST Consulting pursuant to which plaintiff would request specific vehicles and X3 AST Consulting would locate, purchase and deliver those vehicles to plaintiff. Plaintiff alleges that defendant Timani, who is associated with X3 AST Consulting, contacted plaintiff and induced it to transfer money to defendants to secure a 2020 Mercedes Benz GL450, which was not in defendants’ possession.  The complaint alleges that after plaintiff transferred the funds for the vehicle, defendants failed to satisfy the security interest associated with the vehicle in order to authorize the release of the lienholder, so that the vehicle was repossessed by Mercedes Benz Financial Services.

On October 21, 2022, the court heard a Motion to Compel Further Responses to Document Demands brought by defendant Timani.  The Court issued a tentative ruling via posting on LACourt.org website, which was to not consider the motion on the ground that Notice of Motion was not given within 45 days of the service of verified responses to the subject discovery, as required under CCP section 2031.310 (e).  

At the hearing, the Motion to Compel was continued to December 2, 2022.  Later that same date, the court issued a Nunc Pro Tunc Order correcting its minute order to add the language, “The Court set the matter on the date indicated below for an Order to Show Cause Re: Why Monetary Sanctions In The Sum of $900.00 Should Not Be Imposed On Plaintiff's counsel Pavel Kouprine for His Failure To Bring The Extension On The Motion To Compel filed on 09/26/2022 to the Court's Attention.”  The hearing was also set for December 2, 2022. 

On December 2, 2022, the court heard the Motion to Compel on its merits, finding that it had not been untimely, as plaintiff’s counsel had agreed in writing to an extension of time to file the motion, within which the motion had been filed and served.

Specifically, the court relied on an email dated September 7, 2022, which was authored by counsel for plaintiff, Pavel Kouprine, and sent to counsel for defendants, Andre Boniadi, and states: 

“Dear Mr. Boniadi, 

This is to confirm the extension of time for your clients to file their motion to compel production, offered in our meet and confer letter of September 6, 2022, by two weeks. As such, the new deadline is September 26, 2022. 

Thank you. 

Sincerely, 

Pavel Y. Kouprine, Esq.”

[Supp.  Boniadi Decl., para. 2, Ex. H].  

  The court determined the motion was not untimely based on this email, and the motion to compel was determined on its merits and was granted.  Monetary sanctions were awarded in favor of defendant Timani and against plaintiff CAC Motors in the sum of $7,795.00.    

The Court on December 2, 2022 also considered the Order to Show Cause and the response to the OSC filed by plaintiff, and continued the matter to this date, for a further Order to Show Cause, as follows:

“Order to Show Cause Why Monetary Sanctions In The Sum of $900.00 Should Not Be Imposed On Plaintiff's counsel Pavel Kouprine Pursuant to CCP section 128.5, Rules of Professional Conduct Rule 3.3, and Business and Professions Code section 6068, for Counsel’s Failure To Bring The Extension On The Motion To Compel filed on 09/26/2022 to the Court's Attention, and for Continuing to Pursue the Argument that the Motion to Compel was Not Timely. 

Counsel for Plaintiff, Pavel Kouprine is ordered to file with the court, nine court days prior to the continued hearing date, further papers, which must include a declaration of counsel Pavel Kouprine executed under penalty of perjury, which addresses the order to show cause, and includes counsel’s explanation for why counsel argued in the opposition papers to the motion to compel that the motion to compel was late without mentioning the September 7, 2022 email extending the time within which to file the motion, and explaining why counsel has continued to pursue that position even after the email had been submitted to the Court and called to the Court’s attention at the hearing on October 21, 2022.” 

Supplemental papers have been filed and considered.  

RULING:

Order to Show Cause Re:  Why Monetary Sanctions in the Sum of $900 Should Not Be Imposed on Plaintiff’s Counsel Pavel Kouprine Pursuant to CCP section 128.5, Rules of Professional Conduct Rule 3.3, and Business and Professions Code section 6068 for Counsel’s Failure to Bring the Extension on the Motion to Compel Filed on 09/26/2022 to the Court’s Attention, and for Continuing to Pursue the Argument that the Motion to Compel was Not Timely:

The Court is in receipt of the Declaration of Pavel Kouprine, filed and served on October 3, 2002 in response to the Order to Show Cause.  The Court has reviewed the declaration and is satisfied with plaintiff’s counsel’s explanation in the declaration.  

The Order to Show Cause is discharged, and no sanctions are imposed.  

No appearances are required at the hearing. 

 GIVEN THE CORONAVIRUS CRISIS, AND TO ADHERE TO HEALTH GUIDANCE THAT DICTATES SAFETY MEASURES, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangement in advance if you wish to appear via LACourtConnect/Microsoft Teams by visiting www.lacourt.org to schedule a remote appearance.  Please note that LACourtConnect/Microsoft Teams offers free audio and video appearance. Counsel and parties (including self-represented litigants) are encouraged not to personally appear.  With respect to the wearing of face masks, Department D recognizes that currently, the Los Angeles Department of Public Health strongly recommends masks indoors, especially when interacting with individuals whose vaccination status is unknown; for individuals who have a health condition that puts them at higher risk for severe illness; individuals who live with someone who is at higher risk; and for individuals who are around children who are not yet eligible for vaccines.  In accordance with this guidance, it is strongly recommended that anyone personally appearing in Department D wear a face mask.  The Department D Judge and court staff will continue to wear face masks.  If no appearance is set up through LACourtConnect/Microsoft Teams, or otherwise, then the Court will assume the parties are submitting on the tentative.