Judge: Teresa A. Beaudet, Case: 19STCV35232, Date: 2022-07-28 Tentative Ruling

Case Number: 19STCV35232    Hearing Date: July 28, 2022    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

On October 2, 2019, Plaintiff Mirna Boror (“Boror”) filed this wrongful eviction action against, among others, Defendant Rosa Bravo (“Bravo”). On October 4, 2019, Boror filed the operative First Amended Complaint (“FAC”), asserting causes of action for (1) violation of Los Angeles Municipal Code Chapter XV § 151.05(A); (2) violation of Los Angeles Municipal Code Chapter XV § 151.09(C)(5), (G); (3) violation of Civil Code section 789.3(a); (4) violation of Civil Code section 789.3(b); (5) violation of Business and Professions Code section 17200; (6) intentional infliction of emotional distress; (7) negligent infliction of emotional distress; (8) trespass to land; (9) private nuisance; (10) breach of the warranty of habitability; and (11) negligence.

In the FAC, Boror alleges that she was a tenant at the residential property located at 20742 W. Haynes St., Winnetka, California 91306 (the “Subject Property”). (FAC, ¶ 9.) Bravo was Boror’s landlord. (FAC, ¶ 2.) Boror rented out the guest house located on the Subject Property (the “Guest House”). (FAC, ¶ 9.) On February 19, 2019, Bravo served Boror with a Notice of Termination of Tenancy, and Boror contacted the City of Los Angeles’ Housing + Community Investment Department (“HCIDLA”) to learn about her rights regarding the pending eviction. (FAC, ¶ 14.)

Boror alleges that on  March 12, 2019, the City of Los Angeles Department of Building and Safety (“LABDS”) issued a “Substandard Order and Notice of Fee” for residential use of the Guest House, in which LABDS determined that the building was substandard due to illegal occupancy. (FAC, ¶ 15.)

Boror also alleges that defendants never registered the Guest House with the City of Los Angeles as required by Los Angeles Municipal Code Chapter XV § 151.05(A)[1], and that accordingly, they were not entitled to demand or receive rent from Boror at any time during Boror’s tenancy. (FAC, ¶¶ 36, 39.) Boror alleges that during the period of December 2017 to May 2019, defendants unlawfully demanded and obtained $25,500.00 in rent from Boror, and that she is entitled to a refund of this amount. (FAC, ¶¶ 40, 41.) Boror also alleges that as a result of defendants’ failure to comply with HCIDLA’s Order and Los Angeles Municipal Code Chapter XV §§151.09(C)(5) and (G), Boror is entitled to $20,450 in relocation assistance. (FAC, ¶ 45.) Boror further alleges that defendants violated their duty not to engage in self-help wrongful eviction efforts. (FAC, ¶ 61.) 

On December 4, 2020, Boror served Form Interrogatories, Special Interrogatories, Requests for Production of Documents, and Requests for Admission on Bravo. (Benitez Decls.,  ¶ 2.) On September 1, 2021, Boror filed motions for an order compelling Bravo to provide responses to the Form Interrogatories, Special Interrogatories, and Requests for Production of Documents (and deeming the matters in the Requests for Admission admitted) or, in the alternative, compelling further responses to the same (collectively, the “Discovery Motions”). (Benitez Decls., ¶ 20.)

On September 28, 2021, the Court issued an order regarding the Discovery Motions, which provides in pertinent part as follows: “Based on the foregoing, Boror’s motions to compel further responses are granted. The Court orders Bravo to serve complete verified responses, without objections, within 30 days of the date of this order to Boror’s Form Interrogatories, Set One, Special Interrogatories, Set One, Requests for Admission, Set One, and Requests for Production of Documents, Set One. The Court further orders Bravo to serve responsive documents to the Requests for Production of Documents, Set One within 30 days of the date of this order. The Court orders Bravo to pay $14,686.60 to Boror within 30 days of the date of this order.”

Boror asserts that on October 28, 2021, the deadline to comply with the Court’s September 28, 2021 Order, Bravo served defective further responses that were unverified, incomplete and evasive. (Benitez Decls., ¶ 25, Exs. 23.) Boror also indicates that Bravo failed to pay the $14,686.60 in sanctions on October 28, 2021. (Benitez Decls., ¶ 25.) On November 5, 2021, Boror sent an email to Bravo asking Bravo to meet and confer concerning the asserted deficiencies in Bravo’s discovery responses and Bravo’s failure to pay the monetary sanctions. (Benitez Decls., ¶ 30, Ex. 30.) Bravo never responded. (Benitez Decls., ¶ 30.)

Boror now moves (i) for terminating sanctions; or (ii) for issue and evidence sanctions; or (iii) to shift the burden of proof onto Bravo; or, in the alternative, (iv) to compel Bravo to provide further responses to the subject discovery requests and verify her existing responses, and (v) for monetary sanctions against Bravo in the total amount of $19,746.60. Bravo, in pro per, opposes.[2]

Legal Standard 

Once a motion to compel further responses is granted, continued failure to respond or inadequate responses may result in more severe sanctions. (See, e.g., Code Civ. Proc.,

§ 2031.310, subd. (i).) Disobeying a court order to provide discovery is a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (g).) There are a broad range of sanctions available against anyone engaging in conduct that is a misuse of the discovery process, including the issuance of monetary, evidentiary, contempt, and terminating sanctions. (Code Civ. Proc.,           § 2023.030.)  

A monetary sanction may be imposed against one engaging in the misuse of the discovery process. (Code Civ. Proc., § 2023.030, subd. (a).) An issue sanction may be imposed by way of an order that designated facts shall be taken as established or an order that prohibits any party from supporting or opposing designated claims or defenses. (Code Civ. Proc.,              § 2023.030, subd. (b).) An evidentiary sanction may be imposed by way of an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence. (Code Civ. Proc., § 2023.030, subd. (c).)¿¿

Discussion 

Terminating Sanctions

First, Boror asserts that terminating sanctions are warranted because Bravo “spoliated evidence.”

In support of this assertion, Boror first indicates that Bravo failed to provide any response to Form Interrogatory No. 15.1. (Benitez Decls., ¶ 39, Ex. 38.)

Second, Boror asserts that while Bravo identifies certain family members in her responses to a form interrogatory and certain special interrogatories, she failed to provide any contact information for them. (Benitez Decls., ¶ 40, Ex. 39.)[3] Boror also indicates that Bravo responded “do not recall” in response to Special Interrogatory No. 74, which asked Bravo to identify all persons with whom she discussed a April 26, 2019 power outage at the Guest House, but in response to Special Interrogatory No. 73, Bravo answered and produced Exhibits “9” and “10” in which Bravo indicates she spoke with “Lamont at DWP” in a text message. (Benitez Decls., ¶¶ 41-42, Exs. 40-41.)  

Third, Boror notes that in response to Special Interrogatory No. 57, which asks Bravo to identify all inspection reports relating to the subject property, Bravo identifies a “report from LAFH sometime in January or February of 2018 but I do not have a copy, need to subpoena.” (Benitez Decls. ¶ 43, Ex. 42.) Boror contends that the allegations in the FAC demonstrate that she has multiple LABDS and HCIDLA reports in her possession.

Fourth, Boror notes that Special Interrogatory No. 45 asks Bravo to identify all documents she received from Boror concerning Boror’s tenancy. (Benitez Decls. ¶ 45, Ex. 44.) Boror asserts that although Bravo responds, “I don’t have any,” she produced “Exhibit 9” - a text message sent to Bravo by Boror concerning Boror’s lack of electricity at the Guest House. (Benitez Decls. ¶ 45, Ex. 44.)

Fifth, Boror notes that in her responses to Special Interrogatory Nos. 11 and 13 and Requests for Production No. 6, Bravo indicates that she has no responsive records showing acceptance of rental payments from Boror because Bravo “closed [her] bank account.” (Benitez Decls. ¶ 46, Ex. 45.) Boror notes that on May 1, 2019, Boror sent a demand letter warning Bravo of this litigation. (Benitez Decls. ¶ 46, Ex. 45.) Boror concludes that “Bravo destroyed a substantial portion of the file after being notified on May 1, 2019 that Boror would bring suit related to Boror’s tenancy.” (Mots. at p. 10:25-27.)

The Court does not find that the foregoing examples provide direct evidence that Bravo intentionally destroyed or failed to preserve evidence. The Court notes that “[s]poliation of evidence means the destruction or significant alteration of evidence or the failure to preserve evidence for another’s use in pending or future litigation… A terminating sanction is appropriate in the first instance without a violation of prior court orders in egregious cases of intentional spoliation of evidence.” (Williams v. Russ (2008) 167 Cal.App.4th 1215, 1223.)

 Boror also contends that Bravo should have the burden of proof on this motion. In Williams v. Russ (2008) 167 Cal.App.4th 1215, 1227, cited to by Boror, the Court of Appeal found that “it may be proper to apply [Evidence Code] section 500 and shift the burden of proof in discovery sanctions motions. Under that section, burden shifting is proper when one’s party wrongdoing makes it practically impossible for the plaintiff to prove its case. The burden does not shift automatically. Instead, by analogy to decisions concerning the burden of proof at trial, we hold that a party moving for discovery sanctions based on the spoliation of evidence must make an initial prima facie showing that the responding party in fact destroyed evidence that had a substantial probability of damaging the moving party’s ability to establish an essential element of his claim or defense.”[4] The Court does not find that Boror has met this initial burden here. 

Boror also asserts that even in the absence of suppression of evidence, Bravo’s failure to respond to sixteen special interrogatories (Special Interrogatories Nos. 69, 70, 71, 72, 75, 77, 79, 80, 82, 83, 85, 86, 88, 89, 91 and 92) and Form Interrogatory 15.1 as well as Bravo’s failure pay the $14,686.00 in sanctions ordered by the Court justifies terminating sanctions. (Benitez Decls., ¶ 26, Ex. 24.) The Court does not find that the circumstances warrant the imposition of terminating sanctions. Other than the motions to compel that are the subject of the Court’s September 28, 2021 Order, no previous motion to compel directed to Bravo has been granted, so there is no history of multiple discovery abuses to show that less severe sanctions would not produce compliance. “[T]he sanctioned party’s history as a repeat offender is not only relevant, but also significant, in deciding whether to impose terminating sanctions.” (Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1106.) “A decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.” (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.) 

Issue and Evidentiary Sanctions  

Next, Boror contends that Bravo’s noncompliance with the Court’s September 28, 2021 Order justifies issue and evidentiary sanctions.

As to the requested issue sanctions, Boror requests that the Court order that “Boror has conclusively established that Bravo: (i) willfully and illegally collected $25,500.00 in rent from Boror in violation of the RSO; (ii) owes relocation assistance to Boror, since Bravo rented Boror an illegal dwelling in violation of the RSO; and (iii) engaged in serious unlawful eviction activities.” (Mots. at pp. 12:25-13:1.)

As set forth above, Boror indicates that Bravo failed to provide any responses to sixteen special interrogatories and Form Interrogatory No. 15.1. (Benitez Decls., ¶ 26, Ex. 24.) Boror also indicates that the responses Bravo served on October 28, 2021 were not verified. (Benitez Decls. ¶ 25.) As Boror notes, “[u]nsworn responses are tantamount to no responses at all.” (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.)

In the opposition Bravo indicates that it is true she didn’t serve verifications but asserts that she “made a completely innocent mistake of not verifying her responses.” (Opp’n at p. 6.) In light of this assertion, and the fact that Bravo appears to have provided responses to the majority of the discovery requests[5], the Court does not find that the requested issue sanctions are appropriate at this time.

As to the requested evidentiary sanctions, Boror asserts that the Court “should preclude Bravo from relying on any facts, documents or witnesses at trial to establish any of Bravo’s denials of Boror’s material allegations or Bravo’s affirmative defenses, unless they were expressly and clearly disclosed in Bravo’s discovery responses.” (Mots. at p. 13:1-4.) The Court finds that Boror has demonstrated good cause for such an order as to Bravo’s responses to the discovery requests that were the subject of Boror’s September 1, 2021 Discovery Motions and the Court’s September 28, 2021 Order.

            Shifting the Burden of Proof at Trial

            Boror contends that “[a]ssuming the Court does not to [sic] impose terminating, issue or evidence sanctions, the Court should shift the burden of proof at trial onto Bravo…” (Mots. at   p. 13:7-8.) As the Court finds that Boror has demonstrated good cause for evidentiary sanctions, the Court declines to grant this alternative request for relief. 

            Further Responses

            Boror also asserts that “[a]lthough Bravo is unlikely to comply, the Court should compel further responses.” (Mots. at p. 13:19-20.) As set forth above, the Court already ordered in its the September 28, 2021 Order that Bravo “serve complete verified responses, without objections, within 30 days of the date of this order to Boror’s Form Interrogatories, Set One, Special Interrogatories, Set One, Requests for Admission, Set One, and Requests for Production of Documents, Set One.”

Monetary Sanctions  

Lastly, Boror seeks monetary sanctions against Bravo. As discussed above, Boror provides evidence that Bravo failed to respond to a number of special interrogatories and Form Interrogatory No. 15.1, and failed to pay Boror $14,686.60 in monetary sanctions, as required by the Court’s September 28, 2021 Order. Bravo also failed to provide verifications with her responses. Thus, the Court finds that Boror has demonstrated good cause for monetary sanctions. 

In the opposition, Bravo indicates that she is unable to pay the $14,686.60 in monetary sanctions ordered by the Court on September 28, 2021 because she is unemployed. As set forth above, Bravo’s declaration is not made under penalty of perjury. In addition, as Boror notes, Bravo does not provide proof that she is unable to pay sanctions, such as tax returns, bank statements, or documentation of applying for or receiving unemployment benefits or governmental assistance.

Boror seeks $4,936.65 in monetary sanctions as to each of the instant motions, for a total of $19,746.60. (Benitez Decls. ¶ 34.) This includes 93 hours of attorney time for drafting the four motions, 2 hours of attorney time anticipated for arguing the motions, and $486.60 in filing fees and costs. (Benitez Decls. ¶¶ 33.) The Court notes that there is significant overlap in the motions, consequently, the Court finds that the appropriate amount of sanctions for the four motions is $9,107.60.

Conclusion

Based on the foregoing, Boror’s motion is granted in part and denied in part. 

The Court orders that Bravo is precluded from relying on any facts, documents or witnesses at trial to establish any of Bravo’s denials of Boror’s material allegations or Bravo’s affirmative defenses, unless they were expressly and clearly disclosed in Bravo’s discovery responses that were the subject of Boror’s September 1, 2021 Discovery Motions and the Court’s September 28, 2021 Order.

Bravo is ordered to pay monetary sanctions in the amount of $9,107.60 to Boror within 30 days of the date of this Order. Bravo is further ordered to provide verifications for her October 28, 2021 discovery responses within 30 days of the date of this Order. Boror’s motion is otherwise denied.  

Boror is ordered to provide notice of this Order. 

DATED:  July 28, 2022                                  ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court