Judge: Robert S. Draper, Case: BC714462, Date: 2022-08-05 Tentative Ruling

Case Number: BC714462    Hearing Date: August 5, 2022    Dept: 78

Superior Court of California 

County of Los Angeles 

Department 78 

Plaintiff Cyrus Chady’s Motion for Terminating Sanctions as to Defendant Pedram Shamekh is GRANTED. Shamekh’s Answer is stricken, and Default is to be entered. Additionally, Plaintiff’s Request for Sanctions is GRANTED in the amount of $1,120.75.

Plaintiff Cyrus Chady’s Motion for Terminating Sanctions as to Defendant PNP Precious Metals, Inc. is GRANTED. PNP’s Answer is stricken, and Default is to be entered. Additionally, Plaintiff’s Request for Sanctions is GRANTED in the amount of $1,120.75.

FACTUAL BACKGROUND   

This is an action for malicious prosecution. The Complaint alleges as follows. On March 25, 2016, Defendants brought a civil case against Plaintiff Cyrus Chady (“Plaintiff”), P&P Precious Metals, Inc. v. Cyrus Chady, Case No. BC614912 (the “Underlying Case”). (Compl. ¶ 14.) The Underlying Action alleged that Plaintiff purchased from Defendants Pedram Shamekh (“Shamekh”) and PNP Precious Metals Inc. (“PNP”), together with Shamekh, the (“Shamekh Defendants”) seven kilograms of gold for $287,913 which he paid for with two checks. (Compl. ¶ 14A.) The Underlying Action alleged that the checks were bad, and that Plaintiff evaded and avoided PNP and did not pay the money owed. (Compl. ¶ 17.) The Complaint alleges that the Shamekh Defendants conspired with Defendant Bahram Zendedel (“Zendedel”) to steal Plaintiff’s identity and money by forging bad checks. (Compl. ¶ 18.) Defendants Thomas J. Weiss (“Weiss”), doing business as Law Offices of Thomas J. Weiss (“LOTW”) and Shawn Zaman (“Zaman,” collectively, the “Weiss Defendants”) were attorneys representing the Shamekh Defendants in the Underlying Action. (Compl. ¶ 15.)

PROCEDURAL HISTORY 

On July 17, 2018, Plaintiff filed the Complaint alleging a single cause of action:

1.    Malicious Prosecution.

On March 18, 2022, Plaintiff filed a Motion to Deem Requests for Admission Admitted as to Shamekh.

On March 23, 2022, Plaintiff filed a Motion to Deem Requests for Admission Admitted as to PNP.

On April 15, 2022, this Court granted Plaintiff’s Motion to Deem Requests for Admission Admitted as to Shamekh.

On April 20, 2022, this Court granted Plaintiff’s Motion to Deem Requests for Admission Admitted as to PNP.

On May 4, 2022, Plaintiff filed four Motions to Compel Discovery; two as to Shamekh and two as to PNP.

On June 1, 2022, this Court granted all of Plaintiff’s Motions to Compel Discovery.

On July 8, 2022, Plaintiff filed the instant Motion for Terminating Sanctions as to both PNP and Shamekh.

No Opposition has been filed.

DISCUSSION 

                         I.     MOTION FOR TERMINATING SANCTIONS

Plaintiff moves the Court for terminating sanctions pursuant to Code of Civil Procedure section 2023.030(d).

Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidence or monetary sanctions. (CCP, §§ 2023.010(g), 2030.290(c); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) “[A] penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.” (Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.) Pursuant to CCP Section 2023.030(d): 

The court may impose a terminating sanction by one of the following orders: 

(1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process. 

(2) An order staying further proceedings by that party until an order for discovery is obeyed. 

(3) An order dismissing the action, or any part of the action, of that party. 

(4) An order rendering a judgment by default against that party. 

Here, Plaintiff contends that both PNP and Shamekh have refused to comply with three discovery orders. (Uyeda Decl., ¶¶ 11-12.) Additionally, both Defendants have failed to pay the monetary sanctions the Court awarded Plaintiff pursuant to those orders. As of the filing of the instant motion, both defendants have failed to provide any responses to discovery, almost a year after they were first due, and in direct violation of this Court’s orders. (Uyeda Decl., ¶ 15.)

When Plaintiff’s Counsel contacted PNP’s Counsel regarding discovery, PNP’s Counsel informed Plaintiff’s Counsel that PNP would not provide responses. (Uyeda Decl., ¶ 16.) Shamekh represents himself in proper personia, and Plaintiff’s Counsel has been unable to reach him regarding discovery, despite multiple attempts. (Uyeda Decl., ¶ 16.)

Therefore, the Court finds that Defendants have engaged in a pattern of discovery abuse, have not complied with multiple court orders, and that any sanction short of termination will not compel compliance. 

Accordingly, Plaintiff’s Motion for Terminating Sanctions is GRANTED as to both Defendants. Additionally, Plaintiff’s Motions for Monetary Sanctions are GRANTED in the amount of $1,120.75 as to both Defendants.

PNP and Shamekh’s Answers are to be stricken and default is to be entered as to both Defendants. An OSC re: Default Judgment will be set for thirty days.

DATED:  August 5, 2022

______________________________ 

Hon. Robert S. Draper