Judge: Stephen P. Pfahler, Case: 19STCV45676, Date: 2022-12-06 Tentative Ruling

Case Number: 19STCV45676    Hearing Date: December 6, 2022    Dept: F49

Dept. F-49

Calendar # 3

Date: 12-06-22

Case # 19STCV45676

Trial Date: 2-06-23

DEFENDANTS’ MOTION TO COMPEL FURTHER PLAINTIFF SANDY KOBEISSI’S (1) RESPONSES TO SPECIAL INTERROGATORIES (SET TWO) (x1532); (2) RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS (SET TWO) (x2911); AND (3) DEPOSITION AND REQUEST FOR PRODUCTION OF DOCUMENTS (x3146)

MOVING PARTY: Defendants Hussein Kobeissi, Dan Kobeissi, and Brad Kobeissi

RESPONDING PARTY: Plaintiff Sandy Kobeissi

RELIEF REQUESTED

Defendants request an order (1) compelling Plaintiff to serve verified responses, without objections, to Hussein’s Special Interrogatories (Set 2); (2) compelling Plaintiff to serve verified responses, without objections, and produce all documents responsive to Hussein’s Request for Production of Documents (Set 2); and (3) compelling the deposition and production of documents of Plaintiff. Defendants also requests sanctions in the amount of $25,680.00 against Plaintiff.

SUMMARY OF ACTION

On December 18, 2019, Plaintiffs Mike Kobeissi, Sandy Kobeissi, and Paul Kobeissi filed an action against Defendants Hussein Kobeissi, Dan Kobeissi, Brad Kobeissi, and Does 1-10 (“Defendants”). On November 24, 2021, Plaintiffs filed their Second Amended Complaint (“SAC”) against Defendants alleging (1) Damages for Disclosure of Telegraphic or Telephonic Message; (2) Damages for Intentional Infliction of Emotional Distress; (3) Injunctive Relief; and (4) Wrongful Death.

On September 22, 2022, Defendants filed these instant motions to compel further against Plaintiff Sandy (x1532, x2911, and x3146). Defendants also filed other motions to compel further against Plaintiff Mike.

On September 27, 2022, Plaintiffs dismissed this action without prejudice as to Mike and Paul Kobeissi only, and Plaintiffs also dismissed the fourth cause of action for wrongful death.

On September 28, 2022, the Court advanced these instant motions (x1532, x2911, and x3146) to be heard on December 6, 2022. On the same day, Defendants filed amended motions (x1532, x2911, and x3146).

On November 21, 2022, Plaintiff filed her oppositions.

On November 29, 2022, Defendants filed their replies.

RULING: The Court (1) DENIES Defendants’ motion to compel responses to special interrogatories (set two) as MOOT; (2) DENIES Defendants’ motion to compel responses to requests for production as MOOT; and (3) GRANTS Defendants’ motion to compel deposition and requests for production of documents. The Court GRANTS Defendants’ requests for sanctions in the amount of $250.

1.      Motion to Compel Responses to Special Interrogatories (Set Two) (x1532)

“If a party to whom interrogatories are directed fails to serve a timely response… The party propounding the interrogatories may move for an order compelling response to the interrogatories.” (Code Civ. Proc., § 2030.290 subd. (b).)

Defendants state the focus of discovery at issue in this motion is Plaintiffs’ wrongful death claim. (Mot. p. 2:13-14.) In the SAC, Plaintiffs claim Defendants caused the suicide of Mike and Sandy’s daughter, Deanna as a result of Defendants’ alleged dissemination of recording and false accusations which damaged Plaintiffs’ reputation and caused Deanna severe emotional distress. On March 30, 2022, Defendant Hussein propounded written discovery to Plaintiffs related to Deanna’s emotional distress, her suicide which occurred on or about September 2021, and her knowledge of the sexual abuse and recording. (Reyes Decl. ¶ 6; Exh. 3.) Responses were due May 2, 2022. (Reyes Decl. ¶ 6.) Defendants claim that Plaintiff failed to provide any verified, substantive responses. On May 3, 2022, Plaintiff served unverified written responses, which contained only objections. (Id. at ¶ 7.) Prior to the date the responses were due, Plaintiff requested an extension which was denied. (Id. at ¶ 9.) However, on or about May 17, 2022, Defendant’s counsel agreed to continue the deadline to June 21, 2022. (Id. at ¶ 12; Exhib. 7.) Plaintiff requested another extension, which was granted, but Defendant’s counsel denied a request for a third extension. (Id. at ¶¶ 15, 18-19; Exhibs. 10, 12.)

In opposition, Plaintiff argues that Sandy nor Plaintiff’s counsel willfully refused to respond to the special interrogatories but attributes the tardy responses to Sandy’s unstable emotional state due to her daughter’s death and that she was not capable of answering the interrogatories for a period of time. Plaintiff claims she supplied responses on October 12, 2022 and supplemental document responses on November 16, 2022. (Oppo. Exhibs. C, D.)

In reply, Defendants argue that they are entitled to an award of sanctions for Plaintiff’s history of refusal to comply and evasion of discovery obligations. Defendants claim that Plaintiff’s excuse of emotional distress for losing her daughter eight months prior to when discovery requests were served is inadequate and contrary to the fact that she appeared as a witness on or about July 11, 2022 to July 28, 2022 in trial for other cases.

The Court finds that Defendants no longer request an order compelling Plaintiff to respond to the special interrogatories. Furthermore, it appears this request is likely irrelevant given that Plaintiffs dismissed their wrongful death claim. Since Defendants do not request such an order for the special interrogatories and they do not explain how the special interrogatories are still relevant given their initial claim in the moving papers that the focus of these discovery requests was Plaintiffs’ wrongful death claim, the Court DENIES Defendants’ motion to compel responses to special interrogatories (set two) as MOOT. The Court will discuss the imposition of sanctions below.

2.      Motion to Compel Responses to Requests for Production of Documents (Set Two) (x2911)

“The party to whom the demand for inspection, copying, testing, or sampling is directed shall sign the response under oath unless the response contains only objections.” Code Civ. Proc. § 203l.250(a).) As such, under Code of Civil Procedure § 2031.280, a party that fails to serve a timely response, “waives any objection to the demand, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010).” (Code Civ. Proc. § 2031.300(a).) “Unsworn responses are tantamount to no responses at all.” (Appleton v. Superior Court (1988), 206 Cal.App.3d 632, 636.)

Similar to Defendants’ intended purpose for the special interrogatories, Defendants state that the requests for production of documents was relevant, discoverable, and critically important regarding Plaintiffs’ wrongful death claim. (Mot. p. 2:25-3:1-3.) Defendants claim that Plaintiff served unverified written responses on or about May 3, 2022, which is after responses were due on May 2, 2022. Defendants’ meet and confer attempts and Plaintiff’s requests for extensions of time are the same as discussed above.

In opposition, Plaintiff largely reiterates her reasons for being unable to timely produce documents until November 16 as she argued in opposition to motion to compel special interrogatories.

In reply, Defendants make the same arguments as they did in their reply to Plaintiff’s opposition for motion to compel special interrogatories.

As discussed above, the Court finds the requests for production of documents no longer relevant given that Plaintiffs have dismissed their wrongful death cause of action. Defendants have not explained why it is still relevant given this change. Thus, the Court DENIES Defendants’ motion to compel requests for production of documents (set two) as MOOT. The Court will discuss the imposition of sanctions below.

3.      Motion to Compel Deposition and Requests for Production of Documents (x3146)

Pursuant to Code Civ. Proc. § 2025.450(a), “If, after service of a deposition notice, a party ... without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document ... the party giving the notice may move for an order compelling the deponent's attendance and testimony ....” (Code Civ. Proc.§ 2025.450(a).)  

Defendants argue that Plaintiff’s failure to appear at the scheduled depositions allows this Court to compel her attendance at deposition and produce the documents described in the deposition notices. Defendants claim that Plaintiff received proper notice for deposition set for April 27, 2022. (Reyes Decl. ¶ 6; Exhib. 3.) Defendants explain that they were unable to continue the deposition given the Court’s indication that it would not continue trial again and Defendants’ counsel’s heavy schedule over the next few months. Defendants claim that Plaintiff failed to appear for her deposition and failed to appear for the deposition set again by Defendants for May 13, 2022.

In opposition, Plaintiff claims that she was unable to attend the May 13 deposition because she was hospitalized over the weekend of April 30 and that she went to see the same therapist in Lebanon that treated Deanna and that Plaintiff’s counsel notified Defendant’s counsel on May 2, 2022 of these facts. Plaintiff does not explain why she was unable to attend the April 27 deposition. Although Plaintiff has a justifiable reason for missing the May 13 deposition, Plaintiff’s failure to attend the April 27 deposition and continued failure to participate in discovery warrants the Court to grant Defendants’ motion to compel deposition and requests for production of documents. It does not appear like the other motions that the deposition is limited to discovery of Plaintiff’s wrongful death claim. Additionally, as the Court informed counsel previously, it will not continue the trial. In order to continue the discovery process and prevent further delay, the Court GRANTS Defendants’ motion to compel deposition and requests for production of documents. Said deposition and production shall occur at a mutually convenient date within 30 calendar days from the date of this order. The Court will discuss the imposition of sanctions below.

4.      Sanctions

The Court does not find that Plaintiff’s conduct constitutes a misuse of the discovery process concerning her failure to provide proper responses to the special interrogatories and requests for production. Plaintiff did not outright ignore Defendants’ requests since she provided unverified responses. Plaintiff’s counsel was also in communication with Defendants’ counsel, requesting extensions. Plaintiff’s counsel did not willfully fail to respond and did the best they could to cooperate with Plaintiff given her unstable emotional state. The Court finds Plaintiff’s failure to timely comply justified given the death of her daughter and declines to impose sanctions against Plaintiff for failing to provide proper responses to special interrogatories and requests for production. However, the Court does find that Defendants should be granted sanctions for Plaintiff’s failure to attend the April 27 deposition, given Plaintiff’s failure to provide any reasoned explanation for not attending that deposition. Defendants’ requests are excessive. Given that this is Plaintiff’s first offense, and she has not otherwise shown a history of abuse, the Court awards Defendants $250 in sanctions, payable within 30 days from the date of this order.

Defendants to give notice.