Judge Ralph C. Hofer, Case 22GDCV00318 2023-02-10 Tentative Ruling

Plaintiff Ahmed Dehal alleges that plaintiff is a tenant of residential property in Glendale which plaintiff took possession of by a written lease. Plaintiff alleges that defendant Suzanna Abovyan, and un-named Avetik Karapetyan, is the legal owner of the subject property, and at all material times owned, managed, and controlled the property, acting as the active onsite manager.

The complaint alleges that during the course of plaintiff’s tenancy, habitability violations existed that were never properly addressed, including violations of the Civil Code and Health and Safety Code, and that as a consequence of the conditions, plaintiff has sustained physical injuries, and has also sustained severe mental suffering, frustration, and anxiety. Specifically, plaintiff alleges that at multiple times, plaintiff or third parties noticed and documented conditions, including but not limited to insufficient insulation, leaking plumbing, insufficient rain buttresses, electrical wiring not up to code, filth and mold, vermin, rats, bugs, and rubbish. The complaint alleges that plaintiff notified defendant about the violations but defendant failed to correct the conditions, and in response to plaintiff’s complaints retaliated against plaintiff through confrontational communication or disregard and hostile intimidating acts. Plaintiff alleges that after trying to mitigate the problems, plaintiff was ultimately unable to live or work for any amount of time at the property without issues, and plaintiff was ousted by virtue of the conditions.

The complaint alleges that plaintiff gave notice of the constructive eviction and was ousted from the property on November 1, 2020, and that defendant refused to return plaintiff’s entire security deposit, illegally withholding it. Plaintiff also alleges that due to the forced ouster plaintiff has suffered early termination charges by third parties, incurred attorney’s fees, and was forced to sign a lease on comparable property for substantially more money per month.

Plaintiff Ahmed Dehal indicates in oppositions to the motions that since the filing of the motions, plaintiff has served further responses to the subject discovery. [Kellener Decl., para. 7]. Plaintiff’s counsel indicates that the due date for further responses had been incorrectly calendared for January 9, 2023, instead of the December 9, 2022 deadline agreed to by the parties. [Kellener Decl., para. 6]. Counsel indicates that the further responses were drafted, and that on January 5, 2023, after receiving defendant’s motions, the further responses were finalized and sent to defendant’s counsel on January 6, 2023. [Kellener Decl., para. 7].

Plaintiff attaches an email chain in which on January 11, 2023, counsel for defendant acknowledged that supplemental responses were received after the motions had been filed. [Kellener Decl., para. 7, Ex. A]. The motions are accordingly moot. If defendant is not satisfied with the supplemental responses served on January 6, 2023, as the email chain suggests, defendant must meet and confer with plaintiff concerning the new responses, and, if necessary, bring new motions, accompanied by appropriately updated separate statements.

CCP § 2030.300 (d) provides that the court “shall impose a monetary sanction...against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

Under CCP § 2023.010, misuse of the discovery process includes “(f) Making an evasive response to discovery.” Where there has been a misuse of the discovery process, under Section 2023.030(a), the court “may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”

Here, a cursory review of the separate statements shows that the discovery includes a standard set of Form Interrogatories, and several of the responses did not provide all information requested, and several of the responses to interrogatories about which plaintiff should have personal knowledge or be able to locate information (such as how much income plaintiff is claiming to have lost) were some variation of, “I don’t know.” There was no response at all to one interrogatory, and one response improperly referring defendant to the allegations of the complaint.

As to special interrogatories, the interrogatories appear to be contention interrogatories quoting from the complaint and asking for facts, documents, and witnesses, to which the responses were also primarily that plaintiff does not know. These inappropriate responses to Judicial Council approved form interrogatories, and special interrogatories based on the allegations in plaintiff’s own complaint, clearly necessitated bringing a motion to compel further responses.

Plaintiff argues in the oppositions to the motions that sanctions should be denied because responses have been made and the delay in responding was due to mistake, inadvertence, or excusable neglect, as the date by which responses needed to be mailed were mis-calendared by counsel.

This was clearly the responsibility of counsel for plaintiff, who evidently did not respond at all to a November meet and confer letter concerning any willingness to serve further responses. The motions were filed just days before defendant’s statutory deadline for filing such motions would have expired. Plaintiff’s counsel’s admitted mistake and lengthy inaction does not appear to justify having the moving party bear the expense of having had to file these motions. Sanctions for the reasonable expense of filing these motions are awarded.

Plaintiff in the oppositions argues that the hours claimed, 8.1 and 7.9, are excessive for preparation of these boilerplate basic motions. There is no specification of what time plaintiff argues should be excluded from the sanctions award. The motions did require the preparation of separate statements, so did they take some time to prepare. Defendant seeks 3 hours at $500 per hour in connection with each motion to review opposition, prepare reply and travel to and attend the hearing. Since the motions are moot, any replies should be brief, and since the motions are set to be heard at the same time, the hearing expenses will be incurred only once. It would also appear that defendant can appear remotely at the hearing, so that travel time will not be required. The sanctions awarded will be adjusted accordingly, as follows: 3.5 hours attorney time plus ½ hour hearing time [Remote appearance] for Motion to Compel Form Interrogatories; 4.0 hours attorney time to prepare Motion to Compel 2nd and 3rd Sets of Special Interrogatories. No attorney time awarded re opposition or reply or travel to courthouse.

Defendant Suzanna Abovyan’s Motion to Compel Plaintiff Ahmed Dehal to Provide Further Responses to Defendant’s First Set of Form Interrogatories is MOOT in light of the representation in the opposition to the motion, and in the email acknowledging receipt, that further responses were served to the subject discovery on January 6, 2023.

Monetary sanctions requested by moving party: Utilizing a lodestar approach, and in view of the totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $2,000.00 (4.0 hours @ $500/hour) (8.1 hours requested ) plus filing fees in the sum of $60 [Amount Requested $4,110.00], which sum is to be awarded in favor of defendant Suzanna Abovyan and against plaintiff Ahmed Dehal, and plaintiff’s attorney of record, jointly and severally, payable within 30 days. CCP §§ 2030.300(d), 2023.010(f), and 2023.030(a).

Defendant Suzanna Abovyan’s Motion to Compel Plaintiff Ahmed Dehal to Provide Further Responses to Defendant’s Second and Third Sets of Special Interrogatories is MOOT in light of the representation in the opposition to the motion, and in the email acknowledging receipt, that further responses were served to the subject discovery on January 6, 2023.

Monetary sanctions requested by moving party: Utilizing a lodestar approach, and in view of the totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $2,500.00 (5.0 hours @ $500/hour) (7.9 hours requested ) plus filing fees in the sum of $60 [Amount Requested $4,010.00], which sum is to be awarded in favor of defendant Suzanna Abovyan and against plaintiff Ahmed Dehal, and plaintiff’s attorney of record, jointly and severally, payable within 30 days. CCP §§ 2030.300(d), 2023.010(f), and 2023.030(a).

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