Judge: Robert B. Broadbelt, Case: 18STCV00944, Date: 2023-02-10 Tentative Ruling

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Case Number: 18STCV00944    Hearing Date: February 10, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:             Plaintiffs Rabin Shaoulian d/b/a Olam Group and Sean Afshar

RESPONDING PARTY:       Defendant Danny Siag

(1)   Motion for Issue and/or Evidence and/or Terminating and Monetary Sanctions

(2)   Motion to Compel Further Responses to Form Interrogatories, Set Two

(3)   Motion to Compel Further Responses and Compelling Compliance as to Demand for Production of Documents, Set Two

MOVING PARTIES:             Plaintiffs Rabin Shaoulian d/b/a Olam Group and Sean Afshar

RESPONDING PARTY:       Nonparty The Grand LLC

(4)   Motion to Compel Production of Business Records and for Monetary Sanctions

The court considered the moving, opposition, and reply papers filed in connection with each motion.

BACKGROUND

Plaintiffs Rabin Shaoulian d/b/a Olam Group and Sean Afshar (“Plaintiffs”) filed this action on October 16, 2018, against defendant Danny Siag (“Defendant”), alleging two causes of action for (1) breach of contract, and (2) common counts.

Now pending before the court are the following four motions: (1) Motion for Issue and/or Evidence and/or Terminating Sanctions and Monetary Sanctions, filed by Plaintiffs on November 2, 2022; (2) Motion to Compel Further Responses to Form Interrogatories, Set Two, filed by Plaintiffs on November 28, 2022; (3) Motion to Compel Further Responses and Compelling Compliance to Demand for Production of Documents, Set Two, filed by Plaintiffs on November 28, 2022; and (4) Motion to Compel Production of Business Records filed by Plaintiffs on November 29, 2022.

MOTION FOR ISSUE AND/OR EVIDENCE AND/OR TERMINATING AND MONETARY SANCTIONS

Plaintiffs move the court for an order (1) imposing issue, evidence, or terminating sanctions against Defendant, and (2) awarding monetary sanctions in favor of Plaintiffs and against Defendant in the amount of $5,661.65.  Plaintiffs move for this relief on the ground that Defendant failed to comply with two court orders.

First, on September 23, 2019, the court (1) granted Plaintiffs’ motions to compel Defendant’s initial responses to discovery, and (2) ordered Defendant to serve on Plaintiffs full and complete responses to their Form Interrogatories, Set One, and Requests for Production of Documents, Set One.  In violation of the court’s order that Defendant provide responses within 20 days of the date of service of the September 23, 2019 order, Defendant served responses on May 24, 2021.  (Jan. 28, 2022 Order, p. 2:3.) 

Second, on August 23, 2022, the court (1) granted Plaintiffs’ motion to compel further responses, and (2) ordered Defendant to serve on Plaintiffs full and complete further answers to Plaintiffs’ Form Interrogatories, numbers 2.5, 2.6, 2.7, 2.8, subdivision (d), 2.11, 14.1, 14.2, 16.1, 17.1, subdivisions (c) and (d), 50.1, and 50.6, within 20 days of the date of the order.  (Aug. 23, 2022 Order, p. 2:5-12.)  On September 18, 2022, Defendant provided further responses to Plaintiffs’ Form Interrogatories.  (Lisitsa Decl., ¶ 15; Lisitsa Decl., Ex. E.)  Plaintiffs’ counsel determined that the answers were not full and complete, and granted Defendant an extension to provide further revised responses; however, Defendant did not provide any further responses.  (Lisitsa Decl., ¶¶ 16-18.)  Plaintiffs now move the court for an order imposing issue, evidence, or terminating sanctions against Defendant.

If a party engages in the misuse of the discovery process, the court may impose monetary, issue, evidence, or terminating sanctions.  (Code Civ. Proc., § 2023.030.)  Code of Civil Procedure section 2023.010 provides, in relevant part, that “[m]isuses of the discovery process include, but are not limited to, the following: . . . .  (d)  Failing to respond or to submit to an authorized method of discovery. . . . .  (g)  Disobeying a court order to provide discovery.”  

1.     Terminating, Evidence, and Issue Sanctions

The court grants, in part, Plaintiffs’ motion for terminating, evidence, and issue sanctions.

First, the court finds that, after considering the totality of the circumstances, terminating sanctions against Defendant are not warranted.  (Los Defensores, Inc. v. Gomez (2014) 223 Cal. App. 4th 377, 390.)  The court therefore denies Plaintiffs’ request for terminating sanctions.  (Code Civ. Proc., § 2023.030, subd. (d).)

Second, the court finds that evidence sanctions are appropriate to remedy Defendant’s evasive and incomplete further responses to Plaintiffs’ Form Interrogatories, Set Two, as set forth below, in violation of the court’s August 23, 2022 order that Defendant provide full and complete responses.  (Code Civ. Proc., § 2023.030, subd. (c).)

The court finds that Defendant’s response to form interrogatory number 16.1 is evasive.  The court finds that, to remedy the prejudice caused to Plaintiffs by Defendant’s evasive response to form interrogatory number 16.1, it is appropriate to impose an evidence sanction prohibiting Defendant from introducing any testimony or other evidence to establish that any person, other than Defendant or Plaintiffs, contributed to the occurrence of the incident (as that term is defined in Plaintiffs’ Form Interrogatories) or the injuries or damages claimed by Plaintiffs.  (Code Civ. Proc., § 2023.030, subd. (c).)

The court finds that Defendant’s responses to form interrogatory number 17.1, subdivision (c), with respect to Request for Admission numbers 2, 3, 5, 7, 8, 9, and 16 are evasive and incomplete because, although Defendant has identified documents in response to subdivision (c), Defendant does not state the names, addresses, and telephone numbers of all persons who have knowledge of the facts stated in his responses to subdivision (b), as required by form interrogatory number 17.1, subdivision (c).

The court finds that Defendant’s responses to form interrogatory number 17.1, subdivisions (c) and (d), with respect to Request for Admission numbers 11 and 15 are evasive and incomplete because (1) although Defendant has identified documents in response to subdivision (c), Defendant does not state the names, addresses, and telephone numbers of all persons who have knowledge of the facts stated in his responses to subdivision (b), as required by interrogatory number 17.1, subdivision (c), and (2) Defendant does not identify the documents with sufficient specificity in response to subdivision (d).

The court finds that Defendant’s response to form interrogatory number 17.1, subdivision (d), with respect to Request for Admission number 18 is evasive and incomplete because Defendant has not provided a response to subdivision (d), which requires Defendant to identify all documents and other tangible things that support his response and state the name, address, and telephone number of the person who has each document or thing.

In light of the fact that the information requested in form interrogatory number 17.1 as to Defendant’s responses to Plaintiffs’ Requests for Admission discussed above is directly relevant to the most important issues presented by Plaintiffs’ claims in this action, the court finds that, to remedy the prejudice caused to Plaintiffs by Defendant’s evasive and incomplete responses to form interrogatory number 17.1 as set forth above, it is appropriate to impose an evidence sanction prohibiting Defendant from introducing the testimony of any witnesses at trial other than Plaintiffs and Defendant.  (Code Civ. Proc., § 2023.030, subd. (c).)

The court also finds that, to remedy the prejudice caused to Plaintiffs by Defendant’s evasive and incomplete responses to form interrogatory number 17.1 as set forth above, it is appropriate to impose an evidence sanction prohibiting Defendant from introducing any documentary evidence at trial on the following issues: (1) whether it was due to Defendant’s default that the sale of the subject property did not consummate (Request for Admission No. 11); (2) whether Defendant cancelled the sale of the subject property in order to avoid paying commission to Plaintiffs (Request for Admission No. 15); and (3) whether Plaintiffs were paid commission upon the sale of the subject property (Request for Admission No. 18).  (Code Civ. Proc., § 2023.030, subd. (c).)

The court finds that Defendant’s response to form interrogatory number 50.1, subdivision (f) is incomplete and evasive because Defendant does not identify any documents that evidence any modification of the agreement not in writing.  The court finds that, to remedy the prejudice caused to Plaintiffs by Defendant’s evasive and incomplete response to form interrogatory number 50.1, subdivision (f), it is appropriate to impose an evidence sanction prohibiting Defendant from introducing at trial any documents that evidence any modification of the agreement not in writing.  (Code Civ. Proc., § 2023.030, subd. (c).)

Third, the court finds that an issue sanction is appropriate to remedy Defendant’s evasive and incomplete further response to Plaintiffs’ Form Interrogatories, Set Two, as set forth below, in violation of the court’s August 23, 2022 order that Defendant provide full and complete responses.  (Code Civ. Proc., § 2023.030, subd. (b).)

The court finds that Defendant’s response to form interrogatory number 50.6 is evasive and incomplete.  The court finds that, to remedy the prejudice caused to Plaintiffs by Defendant’s evasive and incomplete response to form interrogatory number 50.6, it is appropriate to impose an issue sanction prohibiting Defendant from contending or supporting any contention by Defendant that any agreement alleged in the pleadings is ambiguous.  (Code Civ. Proc., § 2023.030, subd. (b).)   

Finally, the court finds that, with respect to certain answers provided by Defendant, issue, evidence, and terminating sanctions are inappropriate and insufficient to remedy the prejudice caused by Defendant’s evasive and incomplete responses.

The court finds that imposing an issue sanction or evidence sanction would not be appropriate to remedy the prejudice caused by Defendant’s incomplete and evasive response to form interrogatory number 2.7.  The court therefore orders Defendant to serve a full and complete further answer to Plaintiffs’ form interrogatory number 2.7.

The court finds that imposing an issue sanction or evidence sanction would not be appropriate to remedy the prejudice caused by Defendant’s incomplete and evasive response to form interrogatory number 2.11, as to (i) the initial question asking whether Defendant was an agent or employee for any person at the time of the incident (as defined in the Form Interrogatories), and (ii) subdivision (b).  The court therefore orders Defendant to serve a full and complete further answer to Plaintiffs’ form interrogatory number 2.11 as to (i) the initial question with a yes or no answer, and (ii) subdivision (b).

The court finds that Defendant’s responses to form interrogatory number 17.1, subdivisions (a) through (d), are evasive and incomplete as to Defendant’s response (denial) to Request for Admission number 13.  The court therefore orders Defendant to serve a full and complete further answer to form interrogatory number 17.1, subdivisions (a) through (d), as to Request for Admission number 13.

2.     Monetary Sanctions

The court grants Plaintiffs’ request for monetary sanctions against Defendant on this motion.  (Code Civ. Proc., § 2023.030, subd. (a).)  The court finds that $5,661.65 (8 hours x $700 hourly rate + $61.65 in costs) is a reasonable amount of sanctions to impose against Defendant in connection with this motion.  (Lisitsa Decl., ¶¶ 22-23.)

MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, SET TWO

Plaintiffs move the court for an order (1) compelling Defendant to provide a further response to Plaintiffs’ Form Interrogatories, Set Two, number 17.1, and (2) awarding sanctions in favor of Plaintiffs and against Defendant in the amount of $3,561.65.

The court notes that Defendant has submitted, in opposition, evidence of Defendant’s further responses to Plaintiffs’ interrogatory number 17.1, served on January 17, 2023.  (Opp. Ex. A.)  Plaintiffs concede that they received these responses but argue that they are still not straightforward and complete responses.  The court exercises its discretion to consider the further responses served on Plaintiffs by Defendant on January 17, 2023.  (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 409.)

The court grants Plaintiffs’ motion to compel Defendant’s responses to Plaintiffs’ Form Interrogatories, Set Two, number 17.1, subdivisions (b), (c), and (d), as to Requests for Admission numbers 1 through 5, 9, and 10, because Defendant’s answers to those subdivisions are evasive and incomplete.  (Code Civ. Proc., § 2030.300, subd. (a)(1).)

The court grants Plaintiffs’ motion to compel Defendant’s responses to Plaintiffs’ Form Interrogatories, Set Two, number 17.1, subdivisions (c) and (d), as to Requests for Admission numbers 6 through 8, because Defendant’s answers to those subdivisions are evasive and incomplete.  (Code Civ. Proc., § 2030.300, subd. (a)(1).)

The court grants Plaintiffs’ request for monetary sanctions against Defendant on this motion.  (Code Civ. Proc., § 2030.300, subd. (d).)  The court finds that $3,561.65 (5 hours x $700 hourly rate + $61.65 in costs) is a reasonable amount of sanctions to impose against Defendant in connection with this motion.  (Lisitsa Decl., ¶¶ 22-23.)

MOTION TO COMPEL FURTHER RESPONSE AND COMPELLING COMPLIANCE TO DEMAND FOR PRODUCTION OF DOCUMENTS

Plaintiffs move the court for an order (1) compelling Defendant to provide further responses and compelling compliance as to Plaintiffs’ Demand for Production of Documents, Set Two, numbers 1 through 10, and (2) awarding sanctions in favor of Plaintiffs and against Defendant in the amount of $4,961.65.

Defendant has submitted, in his opposition, evidence that he served further responses to Plaintiffs’ Demands for Production on January 17, 2023.  (Opp., Ex. A.)  Plaintiffs do not dispute that they received Defendant’s further responses.  (Reply, p. 2:1-2.)  The court exercises its discretion to consider the further responses served on Plaintiffs by Defendant on January 17, 2023.  (Sinaiko Healthcare Consulting, Inc., supra, 148 Cal.App.4th at p. 409.)

The court has reviewed Defendant’s further responses to Plaintiffs’ Demands for Production, attached to Defendant’s opposition as Exhibit A.  The court finds the further responses comply with Code of Civil Procedure sections 2031.210 through 2031.250, and therefore denies Plaintiffs’ motion to compel further responses as moot.

The court grants Plaintiffs’ request for monetary sanctions against Defendant on this motion.  (Code Civ. Proc., § 2031.310, subd. (h).)  The court finds that sanctions in the amount of $4,961.65 (7 hours x $700 hourly rate + $61.65 in costs) is a reasonable amount of sanctions to impose against Defendant in connection with this motion.  (Lisitsa Decl., ¶¶ 20-21.)

MOTION TO COMPEL PRODUCTION OF BUSINESS RECORDS

Plaintiffs move the court for an order (1) compelling nonparty The Grand LLC to produce the business records described in the deposition subpoena issued by Plaintiffs on August 25, 2022, and (2) awarding sanctions against The Grand LLC and in favor of Plaintiffs in the amount of $4,961.65.

The court finds that the Deposition Subpoena for Production of Business Records served on The Grand LLC is in proper form pursuant to Code of Civil Procedure section 2020.420 and Business and Professions Code section 22541, subdivision (b).  (Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 131 [“The deposition officer … may be an attorney”].)  The court therefore grants Plaintiffs’ motion to compel The Grand LLC to produce the records specified in the Deposition Subpoena issued by Plaintiffs on August 25, 2022, as attached as Exhibit A to the declaration of Gina Lisitsa.  (Code Civ. Proc., § 2025.480, subd. (a).)

The court denies Plaintiffs’ request for monetary sanctions against The Grand LLC because the court finds that the circumstances presented make the imposition of sanctions unjust.  (Code Civ. Proc., § 2025.480, subd. (j).)

The court denies The Grand LLC’s request for monetary sanctions against Plaintiffs because Plaintiffs did not unsuccessfully make a motion to compel production.  (Code Civ. Proc., § 2025.480, subd. (j).)

ORDER

The court grants in part plaintiffs Rabin Shaoulian d/b/a Olam Group and Sean Afshar’s motion for issue and/or evidence and/or terminating sanctions against defendant Danny Siag.

The court orders that the following evidence sanctions are imposed against defendant Danny Siag: 

1.     Defendant Danny Siag is prohibited from introducing any testimony or other evidence to establish that any person, other than defendant Danny Siag or plaintiffs Rabin Shaoulian d/b/a Olam Group and Sean Afshar, contributed to the occurrence of the incident (as that term is defined in plaintiffs Rabin Shaoulian d/b/a Olam Group and Sean Afshar’s Form Interrogatories) or the injuries or damages claimed by plaintiffs Rabin Shaoulian d/b/a Olam Group and Sean Afshar. 

2.     Defendant Danny Siag is prohibited from introducing the testimony of any witnesses at trial other than plaintiffs Rabin Shaoulian d/b/a Olam Group and Sean Afshar and defendant Danny Siag.   

3.     Defendant Danny Siag is prohibited from introducing any documentary evidence at trial on the following issues: (1) whether it was due to defendant Danny Siag’s default that the sale of the subject property did not consummate (Request for Admission No. 11); (2) whether defendant Danny Siag cancelled the sale of the subject property in order to avoid paying commission to plaintiffs Rabin Shaoulian d/b/a Olam Group and Sean Afshar (Request for Admission No. 15); and (3) whether plaintiffs Rabin Shaoulian d/b/a Olam Group and Sean Afshar were paid commission upon the sale of the subject property (Request for Admission No. 18).  

4.     Defendant Danny Siag is prohibited from introducing at trial any documents that evidence any modification of the agreement not in writing.

The court imposes an issue sanction against defendant Danny Siag prohibiting defendant Danny Siag from contending or supporting any contention by defendant Danny Siag that any agreement alleged in the pleadings is ambiguous.    

Pursuant to Code of Civil Procedure section 2030.200, the court orders defendant Danny Siag to serve further, full and complete answers to plaintiffs Rabin Shaoulian d/b/a Olam Group and Sean Afshar’s Form Interrogatories, Set One, numbers 2.7; 2.11, as to (i) the initial question, and (ii) subdivision (b); and 17.1, subdivisions (a) through (d) as to Request for Admission number 13, within 20 days of the date of service of this order.

The court grants plaintiffs Rabin Shaoulian d/b/a Olam Group and Sean Afshar’s motion to compel further responses to Form Interrogatories, Set Two.

Pursuant to Code of Civil Procedure section 2030.300, the court orders defendant Danny Siag to serve further, full and complete answers to plaintiffs Rabin Shaoulian d/b/a Olam Group and Sean Afshar’s Form Interrogatories, Set Two, within 20 days of the date of service of this order, as to the following interrogatories: (1) number 17.1, subdivisions (b), (c), and (d), as to Requests for Admission numbers 1 through 5, 9, and 10, and (2) number 17.1, subdivisions (c) and (d), as to Requests for Admission numbers 6 through 8.

The court denies plaintiffs Rabin Shaoulian d/b/a Olam Group and Sean Afshar’s motion to compel further responses and compelling compliance to demand for production of documents as moot.

The court grants plaintiffs Rabin Shaoulian d/b/a Olam Group and Sean Afshar’s requests for monetary sanctions against defendant Danny Siag.  The court orders defendant Danny Siag to pay to plaintiffs Rabin Shaoulian d/b/a Olam Group and Sean Afshar monetary sanctions in the total amount of $14,184.95 within 30 days of the date of service of this order.

The court grants plaintiffs Rabin Shaoulian d/b/a Olam Group and Sean Afshar’s motion compelling production of business records.

Pursuant to Code of Civil Procedure section 2025.480, the court orders The Grand LLC to produce to plaintiffs Rabin Shaoulian d/b/a Olam Group and Sean Afshar all documents in The Grand LLC’s possession, custody, or control that are specified in the Deposition Subpoena for Production of Business Records directed to The Grand LLC and issued by plaintiffs Rabin Shaoulian d/b/a Olam Group and Sean Afshar on August 25, 2022, within 20 days of the date of service of this order.

The court orders plaintiffs Rabin Shaoulian d/b/a Olam Group and Sean Afshar to give notice of this ruling.

IT IS SO ORDERED.

DATED:  February 10, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court