Judge Stephen P. Pfahler, Case Number: 23STCV01648, Date: 2024-12-11 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 23STCV01648, Date: 2024-12-11 Tentative Ruling

Case Number: 23STCV01648 Hearing Date: December 11, 2024 Dept: 68

Dept. 68

Date: 12-11-24

Case #23STCV01648

Trial Date: 1-27-25 c/f 7-22-24

SANCTIONS

MOVING PARTY: Defendants, Kamran Rahimi, et al.

RESPONDING PARTY: Plaintiff, Elliot Tishbi

RELIEF REQUESTED

Motion to Compel the Deposition of Plaintiff Elliot Tishbi and Production of Documents

SUMMARY OF ACTION

Plaintiff Elliot Tishbi alleges an oral agreement with defendants Kamran and Ramin Rahimi in May 2021, whereby if Plaintiff found a tenant to enter into a one year minimum lease for premises located at 794-796 Stanford Avenue, Los Angeles, Defendants would pay Plaintiff a $50,000 fee. Plaintiff alleges the placement of a tenant for a three year lease term. No fee was ever paid.

On January 25, 2023, Plaintiff filed a complaint for Breach of Oral Contract, Fraud, and Violation of Penal Code section 496, subdivision (a). On July 5, 2023, the court sustained the demurrer to the complaint. On August 1, 2023, Plaintiff filed a first amended complaint for Breach of Oral Contract, Fraud, and Violation of Penal Code section 496, subdivision (a) on August 1, 2023. On December 11, 2023, the court overruled the demurrer to the breach of contract cause of action, and sustained the demurrer to the remainder of the first amended complaint with 20 days leave to amend. On December 29, 2023, Plaintiff filed a second amended complaint for Breach of Oral Contract, and Fraud.

On February 8, 2024, the court sustained the demurrer to the second cause of action for fraud without leave to amend. Defendants answered the complaint on February 21, 2024.

RULING: Denied without Prejudice.

Defendants Kamran and Ramin Rahimi move for issue or terminating sanctions against Plaintiff Elliot Tishbi due to the failure to comply with the August 8, 2024, court order to sit for deposition and the production of documents. Plaintiff in opposition contends the motion is deceptive and overly harsh in that Defendant “unilaterally” set the deposition date without acknowledging Plaintiff’s “medical procedure” on the exact set date. Plaintiff maintains providing “multiple” dates. Defendants in reply challenge the sufficiency of the opposition and reiterate the basis of the motion.

“Discovery sanctions ‘should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.’” (Young v. Rosenthal (1989) 212 Cal.App.3d 96, 118-119 citing Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793; Newland v. Superior Court (1995) 40 Cal.App.4th 608, 613.) A prerequisite to the imposition of the dismissal sanction is that the party has willfully failed to comply with a court order. (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280; Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 487 overruled on other grounds in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, fn. 4.); Young v. Rosenthal (1989) 212 Cal.App.3d 96, 114.) Preventing parties from presenting their cases on the merits is a drastic measure; terminating sanctions should only be ordered when there has been previous noncompliance with a rule or order and it appears a less severe sanction would not be effective. (Link v. Cater (1998) 60 Cal.App.4th 1315, 1326; Department of Forestry & Fire Protection v. Howell¿(2017) 18 Cal.App.5th 154, 191 [“Terminating sanctions are to be used sparingly because of the drastic effect of their application.”].) “The trial court may order a terminating sanction for discovery abuse ‘after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.’” (Los Defensores, Inc. v. Gomez¿(2014) 223 Cal.App.4th 377, 390.)

A prerequisite to the imposition of the dismissal sanction is that the party has willfully failed to comply with a court order. (Mileikowsky v. Tenet Healthsystem, supra, 128 Cal.App.4th at pp. 279-280; Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 487 overruled on other grounds in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, fn. 4.); Young v. Rosenthal (1989) 212 Cal.App.3d 96, 114.) “Discovery sanctions ‘should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.’” (Young v. Rosenthal (1989) 212 Cal.App.3d 96, 118-119 citing Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793; Newland v. Superior Court (1995) 40 Cal.App.4th 608, 613.) Preventing parties from presenting their cases on the merits is a drastic measure; terminating sanctions should only be ordered when there has been previous noncompliance with a rule or order and it appears a less severe sanction would not be effective. (Link v. Cater (1998) 60 Cal.App.4th 1315, 1326.)

Evidence or issue sanctions may be imposed only after parties violated discovery orders compelling further responses, except in exceptional circumstances, including where there was sufficiently egregious misconduct regarding a failure to respond to discovery, or a prior discovery order would be futile. (New Albertsons, Inc. v. Sup. Ct. (2008) 168 Cal.App.4th 1403, 1428.) “The discovery statutes thus ‘evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.’ (Citation.) Although in extreme cases a court has the authority to order a terminating sanction as a first measure (Citations), a terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective.” (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.) To avoid sanctions, the burden of proving that a discovery violation was not willful is on the party on whom the discovery was served. (Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250, 252- 253.)

“The discovery statutes thus ‘evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.’ (Citation.) Although in extreme cases a court has the authority to order a terminating sanction as a first measure (Citations), a terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective.” (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.) To avoid sanctions, the burden of proving that a discovery violation was not willful is on the party on whom the discovery was served. (Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250, 252- 253.)

In the unopposed motion to compel the deposition, the court specifically noted the four months of effort to schedule the deposition only to have Plaintiff cancel the day before the agreed upon date in March 2024. The court specifically ordered the parties to meet and confer, and if Plaintiff again refused to appear, Defendants were allowed to unilaterally set a date, and upon a further non-appearance by Plaintiff, seek sanctions.

Defendants presents support indicating a refusal to cooperate in setting a date, thereby providing license to Defendants to proceed with the subject motion. The declaration of defense attorney David Youssefeh indicates efforts to meet and confer for a new date pursuant to the order beginning on August 14, 2024. Counsel represents no responses were provided, thereby leading to the August 28, 2024, date. Plaintiff took a certificate of non-appearance. [Declaration of David Youssefeh, ¶¶ P-W, Ex. A-G.]

Plaintiff, now on the brink of dismissal, only now opposes the motion—more than 11 months after Defendants first sought to schedule the deposition—challenging the propriety of the motion and continuing to provide excuses on the continuing lack of any deposition. Plaintiff in opposition maintains Defendants “were repeatedly informed” of certain unavailability even before the August 8, 2024, order. The August 28, 2024, deposition date was unilaterally set. The statements vaguely supports the representation in an August 22, 2024, email offering September dates (e.g. after August 28, 2024), but the specific August 28, 2024, unavailability was otherwise only established after the fact in a letter from “Airport Urgent Care” dated October 14, 2024. [Declaration of Kamiar Kooshki, Ex. 1-2, 4.]

The court generally adheres to a style of robust discovery in order to facilitate the parties’ presentation of their best, thereby allowing a fair prosecution and defense of the action. In cases of extreme practice, the court will follow the progression of evidentiary and issue sanctions, with terminating sanctions only reserved for the most extreme of cases, as well established in the standard. The court hesitantly imposes issue and evidentiary sanctions, where the result leads to a potential windfall for the prevailing party and an effective “avoidance of a decision on the merits.” (Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1194 accord McGinty v. Superior Court (1994) 26 Cal.App.4th 204, 214 [“On balance, we conclude that it was excessive and an abuse of discretion for the trial court to impose the preclusive witness and evidence sanction in this case for Hood's violation of the authority of another court, where no real harm has been done to Avco, and where the punishment falls most harshly not on the supposed malefactor but on the petitioners in their ability to have their case decided on the merits.”]

While the court first considers issue and evidentiary sanctions, where a party appears to have abandoned the case, the court can impose terminating sanctions. Again, in the subject case, Plaintiff continues to prosecute the case, but the 11-month sought after deposition indicates reluctance to present the evidentiary basis for the motion. On a procedural note, the motion lacks specific identification of the items sought for preclusion under issue and/or evidentiary sanctions in violation of California Rules of Court, rule 3.1345(a)(7).

The email proof establishes a lack of willful intent to violate the order, albeit continuous delays presented, thereby undermining support for the imposition terminating sanctions. (Cornwall v. Santa Monica Dairy Co., supra, 66 Cal.App.3d at pp. 252- 253.) The court therefore finds terminating sanctions unduly harsh and unjustified. In considering the request for evidentiary or issue sanctions, even disregarding the violation of California Rules of Court, rule 3.1345(a)(7), the court also declines to impose such sanctions in that an such ruling would effectively constitute a dismissal. (See Rutledge v. Hewlett-Packard Co., supra, 238 Cal.App.4th at p. 1194.) The motion for sanctions is therefore DENIED without Prejudice at this time.

The court will therefore allow one last and final opportunity for the parties to coordinate a date. Given the January 27, 2025, trial date, the court first orders the parties to meet and confer and agree on a date prior to today’s hearing. If the parties cannot agree on a date, the Court again orders the parties to agree upon a date within five (5) calendar days of this order with the deposition completed within 15 calendar days of this order. The parties are ordered to establish proof of a mutually agreed upon date and time in writing/email. The court will seek demonstrated efforts of BOTH sides to meaningfully agree. If said deposition is not set within 5 calendar days, the Court highly encourages the moving Defendant to proceed ex parte forthwith, and all counsel are ordered to bring their calendars along with Plaintiff’s calendar. It is absolutely time for this deposition occur now.

ANY further excuses for a non-appearance will be reviewed under the standard set forth in the subject order, especially regarding consideration for willful violation of the order compelling the deposition. Failure to agree upon a date and time within the subject window, or failure to appear upon the agreed upon date and time, due to ANY AND ALL circumstances, including unforeseen issues, on, before, or after the agreed upon date and time established in writing, may constitute an admission of an unwillingness to cooperate and intentional evasion. The court will additionally consider the imposition of harsh monetary sanctions on top of any potential terminating, evidentiary or issue sanction, if this matter appears before the court due to a missed deposition. No further continuances.

Trial remains set for January 27, 2025.

Defendants to give notice.