Judge Teresa A. Beaudet, Case BC721277 2023-01-17 Tentative Ruling

Plaintiff James Gibb (“Gibb”) filed this action on September 7, 2018 against Defendants Marada Enterprises, LLC dba Marada Pictures (“Marada”) and Sarah Lazow (“Lazow”) (jointly, “Defendants”). The operative First Amended Complaint was filed on January 14, 2020 and asserts causes of action for (1) breach of contract, (2) fraud in the inducement, and (3) intentional interference with contractual relations. Marada filed a Cross-Complaint against Gibb on October 9, 2019, and an Amended Cross-Complaint on February 24, 2020. In the Amended Cross-Complaint, Marada asserts causes of action for (1) breach of contract, (2) breach of fiduciary duty, (3) fraud, (4), conversion, (5) unjust enrichment, and (6) accounting.

In the FAC, Gibb alleges that Lazow induced Gibb to enter into a production services agreement by making false representations, including, inter alia, that Marada had the present financial ability to pay Gibb pursuant to the terms of the production services agreement; that Lazow had capitalized Marada sufficiently to allow for the development, financing and production of motion picture projects Gibb brought to Marada; and that Lazow had the personal financial resources to ensure Marada’s performance. (FAC, ¶ 1.) After the parties entered into the production services agreement in August 2017 (“Producer Agreement”), Defendants failed to pay Gibb for services rendered and to allocate the capital necessary to develop, finance, and produce the motion picture projects. (FAC, ¶ 1.)[1] Gibb also alleges that Defendants have contacted the production company for whom Gibb now works and demanded that the funds he is earning be paid to Defendants instead. (FAC, ¶ 3.) Defendants have also threatened to sue Gibb’s current employer and to disrupt their financial relationship with Netflix if their demands are not met. (FAC, ¶ 3.)

Gibb now moves for an order establishing admissions against Lazow, imposing issue sanctions against Lazow, and imposing evidentiary sanctions against Lazow. The motion is unopposed.

Gibb notes that on November 10, 2022, the Court issued an Order on motions to compel filed by Gibb. The November 10, 2022 Order provides, inter alia, as follows:

“Gibb’s motion to compel further responses to his First Set of Demands for Production of Documents and Tangible Things is granted. The Court orders Lazow to provide further verified responses and to produce documents responsive to Demand for Production No. 1 as it pertains to Special Interrogatories Nos. 13-15 and 17-31, and Demand for Production Nos. 19, 22, 23, and 53-58 within 30 days of the date of this Order.¿¿

Gibb’s motion to compel further responses to his First Set of Special Interrogatories is granted. The Court orders Lazow to provide further verified responses as to Special Interrogatories Nos. 13-15 and 17-31 within 30 days of the date of this Order.¿¿

Gibb’s motion to compel further responses to his First Set of Requests for Admission is granted. The Court orders Lazow to provide further verified responses to Requests for Admission Nos. 1-3 and 9-15 within 30 days of the date of this Order.”

Gibb indicates that as of December 12, 2022, his counsel’s office had not received any further discovery responses from Lazow. (Mann Decl., ¶ 10.) Thereafter, Gibb’s counsel attempted to meet and confer with Lazow concerning her failure to provide further responses in accordance with the Court’s November 10, 2022 Order. (Mann Decl., ¶¶ 11-12.) As of the date of Gibb’s filing of the instant motion, Gibb’s counsel did not receive any substantive meet and confer response from Lazow or any amended discovery responses. (Mann Decl., ¶ 14.)

Gibb asserts that sanctions should be issued against Lazow for her failure to comply with the Court’s November 10, 2022 Order. Gibb also asserts that the matters involved in Gibb’s Requests for Admission should be deemed admitted due to Lazow’s failure to provide further responses as required by the November 10, 2022 Order.

With regard to the Requests for Admission, Code of Civil Procedure section 2033.290, subdivision (e) provides that, “[i]f a party then fails to obey an order compelling further response to requests for admission, the court may order that the matters involved in the requests be deemed admitted…” As set forth above, the November 10, 2022 Order provides that “[t]he Court orders Lazow to provide further verified responses to Requests for Admission Nos. 1-3 and 9-15 within 30 days of the date of this Order.” As of the filing of the instant motion on December 16, 2022, Gibb’s counsel did not receive any amended discovery responses from Lazow. (Mann Decl., ¶ 14.) Based on the foregoing, and in light of the lack of any opposition by Lazow, the Court orders that the matters involved in Requests for Admission Nos. 1-3 and 9-15 in Gibb’s First Set of Requests for Admission be deemed admitted.

With regard to the requested sanctions, misuses of the discovery process include failing to respond or to submit to an authorized method of discovery, and disobeying a court order to provide discovery. (Code Civ. Proc., § 2023.010, subds. (d), (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 evidentiary and issue sanctions. (Code Civ. Proc., § 2023.030.)

“The court may impose an issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.” (Code Civ. Proc., § 2023.030, subd. (b).) In addition, “[t]he court may impose an evidence sanction by 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).)

Gibb asserts that issue sanctions should be imposed for his First Set of Special Interrogatories. Pursuant to Code of Civil Procedure section 2030.300, subdivision (e), “[i]f a party then fails to obey an order compelling further response to interrogatories, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010).”
As discussed, the November 10, 2022 Order provides that “[t]he Court orders Lazow to provide further verified responses as to Special Interrogatories Nos. 13-15 and 17-31 within 30 days of the date of this Order.” As of the filing of the instant motion on December 16, 2022, Gibb’s counsel did not receive any amended discovery responses from Lazow. (Mann Decl., ¶ 14.)

Gibb asserts that Lazow’s failure to provide further verified responses to Gibb’s Special Interrogatories warrants an order designating the following facts as established:

“SROG NO. 17, 20: As of June, 2017, Defendant Marada did not have the present

financial ability to meet its payment obligations to Mr. Gibb under the terms of the

financial ability to fund its ongoing business operations throughout the term of the

financial ability to develop, finance and produce the motion picture projects that Mr. Gibb was bringing to Marada.

SROG Nos. 13, 18, 19, 23-25: As of June, 2017, Defendant Sarah Lazow did not

have the present financial ability to ensure that Marada could meet these obligations.

SROG No. 14, 15: Defendants Sarah Lazow and Marada did not make any payments

related to Mr. Gibb’s pre-existing projects, including V Wars, Jigsaw, Unlocked, and

to the terms of the Deal Memorandum. Defendant Marada has not incurred any damages as result the subpar services that it claims Mr. Gibb provided to it.” (See Mot. at p. 8:13-26.)

Based on Lazow’s failure to provide further responses in accordance with the November 10, 2022 Order, and in light of the lack of any opposition to the instant motion, the Court finds that Gibb has demonstrated good cause for the Court to impose the foregoing issue sanctions.

Lastly, Gibb asserts that Lazow’s failure to provide amended responses to Plaintiff’s First Set of Demand for Production Nos. 1, 19, 22, 23, and 53-58 in accordance with the November 10, 2022 Order merits evidentiary sanctions. Code of Civil Procedure section 2031.310, subdivision (i) provides, “[e]xcept as provided in subdivision (j), if a party fails to obey an order compelling further response, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010).” As discussed, the November 10, 2022 Order provides that “[t]he Court orders Lazow to provide further verified responses and to produce documents responsive to Demand for Production No. 1 as it pertains to Special Interrogatories Nos. 13-15 and 17-31, and Demand for Production Nos. 19, 22, 23, and 53-58 within 30 days of the date of this Order.” As of the filing of the instant motion on December 16, 2022, Gibb’s counsel did not receive any amended discovery responses from Lazow. (Mann Decl., ¶ 14.) Gibb accordingly requests that Lazow be prevented from presenting the following documents at trial:

“DEMAND NO. 1: Documents not previously produced as they pertain to Special

DEMAND NO. 19: Documents evidencing payments made by Defendant Sarah Lazow to Marada related to the Deal Memorandum.

DEMAND NO. 22: Documents evidencing expenses Sarah Lazow paid related to any

DEMAND NO. 23: Documents evidencing expenses Marada paid related to any Project

DEMAND NO. 57: Documents evidencing expenses that Defendant Sarah Lazow claims

DEMAND NO. 58: Documents evidencing services Defendant Sarah Lazow performed related to Weekend.” (See Mot. at pp. 9:20-10:8.)

The Court orders that that the matters involved in Requests for Admission Nos. 1-3 and 9-15 in Gibb’s First Set of Requests for Admission be deemed admitted.

The Court orders that the following facts shall be taken as established in this action:

SROG NO. 17, 20: As of June, 2017, Defendant Marada did not have the present

financial ability to meet its payment obligations to Mr. Gibb under the terms of the

financial ability to fund its ongoing business operations throughout the term of the

financial ability to develop, finance and produce the motion picture projects that Mr.

SROG Nos. 13, 18, 19, 23-25: As of June, 2017, Defendant Sarah Lazow did not

have the present financial ability to ensure that Marada could meet these obligations.

SROG No. 14, 15: Defendants Sarah Lazow and Marada did not make any payments

related to Mr. Gibb’s pre-existing projects, including V Wars, Jigsaw, Unlocked, and

to the terms of the Deal Memorandum. Defendant Marada has not incurred any damages as result the subpar services that it claims Mr. Gibb provided to it.

Lastly, the Court orders that Lazow is prohibited from introducing the following matters into evidence at trial:

DEMAND NO. 19: Documents evidencing payments made by Defendant Sarah Lazow to Marada related to the Deal Memorandum.

DEMAND NO. 22: Documents evidencing expenses Sarah Lazow paid related to any

DEMAND NO. 23: Documents evidencing expenses Marada paid related to any Project

DEMAND NO. 57: Documents evidencing expenses that Defendant Sarah Lazow claims

DEMAND NO. 58: Documents evidencing services Defendant Sarah Lazow performed related to Weekend.

[1]A copy of the alleged Producer Agreement is attached as Exhibit A to the FAC. (FAC, ¶ 1, Ex. A.) The title listed on the agreement is “Deal Memorandum.” (Ibid.)

james gibb, Plaintiff, vs. MARADA ENTERPRISES, LLC, et al., Defendants.	Case No.:	BC721277
	Hearing Date:	January 17, 2023
	Hearing Time:	10:00 a.m.
	[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION FOR EVIDENTIARY AND ISSUE SANCTIONS AGAINST DEFENDANT SARAH LAZOW
AND RELATED CROSS-ACTION

Superior Court of California

County of Los Angeles

Department 50