Judge: Theresa M. Traber, Case: 21STCV11739, Date: 2023-01-25 Tentative Ruling

Case Number: 21STCV11739    Hearing Date: January 25, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     January 25, 2023                   TRIAL DATE: NOT SET

CASE:                         Avraham Bibi v. Roey Burg, et al.

CASE NO.:                 21STCV11739           

(1)   MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES; REQUEST FOR SANCTIONS

(2)   MOTION TO COMPEL RESPONSES TO SPECIAL INTERROGATORIES; REQUEST FOR SANCTIONS

(3)   MOTION TO DEEM REQUESTS FOR ADMISSIONS AS ADMITTED; REQUEST FOR SANCTIONS

MOVING PARTY:               (1)(2)(3) Defendant/Cross-Complainant ADB Group, Inc.

RESPONDING PARTY(S): (1)(2)(3) Plaintiff/Cross-Defendant Avraham Bibi

CASE HISTORY:

·         03/26/21: Complaint filed

·         08/01/22: Cross-Complaint filed by Roey Burg and ADB Group Inc. as to Avraham Bibi

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for breach of contract, breach of fiduciary duty, and fraud arising from the breakdown of a joint venture between the parties in the beauty supply and spa business. Plaintiff alleges that Defendants entered into unauthorized partnership agreements and misappropriated company assets.

Defendant ADB LLC moves to compel responses to form and special interrogatories and to deem requests for admission propounded to Plaintiff Avraham Bibi as admitted, and for sanctions.

TENTATIVE RULING:

Defendant’s request for sanctions is GRANTED in the amount of $1,960 against Plaintiff Avraham Bibi and his counsel, jointly and severally. Payment is to be made within 30 days of the date of this order.

DISCUSSION:

Defendant ADB LLC moves to compel responses to form and special interrogatories and to deem requests for admission propounded to Plaintiff Avraham Bibi as admitted, and for sanctions.

            At a Case Management Conference on December 5, the parties informed the Court that Plaintiff had provided responses to the outstanding discovery requests, and that the only issue remaining to be decided by the Court was the issue of sanctions. The Court will therefore rule on the sanctions requests only.

            Sanctions are mandatory for failure to respond to interrogatories unless the Court finds that the respondent acted with substantial justification or other circumstances render the imposition of sanctions unjust. (Code Civ. Proc. §§ 2030.290(c), 2030.300(d).) Sanctions may be awarded against the party or attorney or both whose failure to serve a timely response to requests for admission necessitated the motion. (Code Civ. Proc. § 2033.280(c).)

            Here, Defendant requests sanctions against Plaintiff and his counsel, jointly and severally, in the amount of $7,522.50 in connection with the three sets of discovery at issue. Defendant bases this request on 7.8 hours of attorney time incurred in connection with the motions, plus an additional two hours anticipated for the hearings on the three motions at an hourly rate of $600. (Omnibus Declaration of David Bosko ISO Mots. ¶ ¶ 16-19.) Defendant further contends it also spent 7.5 hours of paralegal time at an hourly rate of $195 in connection with this motion. (Id.) Finally, Defendant requests $60 in filing fees for each of the three motions. (Id. ¶ 22.)

            In opposition, Plaintiff contends sanctions should not be imposed because the imposition of sanctions would be unjust, and because Defendant’s request for sanctions is deficient. Plaintiff first argues that the failure to respond to discovery was the result of Defendant overwhelming Plaintiff with over a dozen sets of discovery at a time when Plaintiff’s counsel had lost critical personnel, and then Plaintiff’s counsel’s schedule subsequently became overburdened by other cases. The Court is not persuaded by this argument. Plaintiff’s counsel offers no evidence that any effort was made to seek further extensions of the time to respond to these requests, or to advise Defendant of the status of the responses or to otherwise resolve this matter. Even if the Court were to accept as true Plaintiff’s counsel’s characterization of his interactions with Defendant’s counsel as hostile, combative, and reluctant to grant extensions (see Declaration of Steven Berkowitz ISO Opp. ¶ 4)—which Defendant disputes—that would not justify Plaintiff’s failure to timely respond to the outstanding requests without communication. Further, substantial justification does not provide a shield against sanctions for Plaintiff’s failure to respond to the requests for admission, and therefore this argument is not a complete defense from sanctions against Plaintiff or Plaintiff’s counsel in any event. (Code Civ. Proc. § 2033.280(c).)

            Plaintiff next argues that Defendant’s requests for sanctions are defective because Defendant has not properly established the foundation for the paralegal fees requested or for Defendant’s counsel’s hourly rate based on his skill and experience. The Court is not persuaded by this argument. Defendant’s counsel has provided a declaration under penalty of perjury that the listed rates for both Mr. Bosko and his paralegal are their regular, customary rates. (Bosko Decl. ¶¶ 20-21.) The Court finds this statement sufficient justification for the requested hourly rates.

Plaintiff’s final argument, however, is more meritorious. Plaintiff argues that Defendant’s request is excessive considering the scope of the issues in two motions to compel responses and a motion to deem requests for admission as admitted. The Court agrees. 7.8 hours of attorney time plus 7.5 hours of paralegal time for three extremely simple discovery motions is excessive and unreasonably inflated. A fee request that appears unreasonably inflated is a special circumstance permitting the court to reduce the award or deny one altogether. (Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 990-91.) Defendant’s argument that the additional time and fees were necessary to prepare the numerous exhibits and detail the full history of discovery in this case is not well-taken. The issue before the Court with respect to these motions was whether Plaintiff timely responded to the discovery at issue, and, if not, whether responses should be compelled, the requests for admissions be deemed admitted, and whether the failure to respond should result in sanctions. The Court is neither obliged nor inclined to reward Defendant and its counsel for making poor use of their time.

As the Court has found that Defendant’s fee requests are unreasonably inflated, the Court will reduce Defendant’s requested sanctions to 1 hour of attorney time at $600 per hour in connection with each of the three motions, plus the filing fees for each motion, for a total of $1,960 in sanctions against Plaintiff and his counsel, jointly and severally.

CONCLUSION:

Accordingly, Defendant’s request for sanctions is GRANTED in the amount of $1,960 against Plaintiff Avraham Bibi and his counsel, jointly and severally. Payment is to be made within 30 days of the date of this order.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated: January 25, 2023                                 ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.