Judge Thomas D. Long, Case 19STCV10771 2023-02-06 Tentative Ruling

Plaintiff Alexander Olshansky (“Plaintiff”) propounded form interrogatories, set one, and special interrogatories, set one, on Mikhail Cheban (“Defendant”) on August 19, 2022. Plaintiff provides that Defendant served unverified responses October 4, 2022, and indicated verifications were to follow.[1] Plaintiff asserts that to date, Defendant has not served verifications. Plaintiff therefore seeks an order compelling Defendant to provide verifications to the outstanding discovery and to pay sanctions.

In opposition, Defendant’s counsel currently asserts that Defendant has been unable to verify the responses because he has been residing outside of the U.S “mostly” in Ukraine since 2018, which is currently at war. Defendant’s counsel further asserts that communication with his client has been limited and unreliable due to electricity and telecommunication interference in Ukraine. He states that Defendant is aware of the discovery served on him and counsel was able to communicate the gravity of this lawsuit to Defendant, but exigent world conflict makes Defendant’s participation in this case difficult. Defendant does not corroborate any of these statements with his own current declaration. Defendant contends that sanctions are unwarranted, and that he may move to stay the proceedings.

In reply, Plaintiff contends that the truthfulness of Defendant’s claims is questionable because Defendant has submitted declarations in other actions stating that he has left Ukraine.[2] For example, Plaintiff asserts that recently, “on December 16, 2022, in U.S. Bank National Association v. SSRE Holdings LLC, et al. (Case No. 22PSCV01642 out of Los Angeles County), Defendant Cheban filed another signed declaration in support of a Motion to Quash Service of Summons.” (Reply at 4:9-11.) Plaintiff argues there is no explanation given for why Defendant can sign declarations but cannot sign the subject discovery, other than Defendant strategically picks and chooses the cases in which he will participate.[3]

The Court understands the seriousness of the circumstances in Ukraine. However, Defendant has not moved for a stay of the proceedings against him, and Defendant does not otherwise dispute that he has not served verifications to the form interrogatories or special interrogatories. Moreover, an unverified response is tantamount to no response at all. (Melendrez v. Superior Court (2013) 215 Cal.App.4th 1343, 1348.)

Therefore, Plaintiff’s motions are granted. Plaintiff is ordered to serve verified responses to form interrogatories, set one, and special interrogatories, set one, within thirty (30) days. (CCP § 2030.290(a), (b).)

Sanctions are mandatory unless the one subject to sanctions acted with substantial justification or other circumstances make the imposition of sanctions unjust. (CCP § 2030.290(c).) In response to Defendant’s claim that he currently resides in Ukraine making the signing of verifications virtually impossible, Plaintiff submits signed declarations that Defendant has filed in other cases. The declarations raise serious questions as to Defendant’s claims that he cannot participate in this particular action because he is currently living in Ukraine.

Plaintiff is awarded the requested 0.5 hours total for for preparing the motions to compel, preparing the replies, and for appearing at the hearing all at the reasonable rate of $200 per hour, for a total of $200 (1 hour x $200) in attorney fees. Further, Plaintiff is awarded the motion filing fees of $60 for each motion, or $120 total, as costs.

Sanctions are sought and imposed against Defendant. Defendant is ordered to pay sanctions to Plaintiff, by and through counsel of record, in the total amount of $320, within thirty (30) days.

Hon. Audra Mori

Judge of the Superior Court

[1] Defendant’s responses contain both objections and fact-specific responses, such that verifications are required. (Food 4 Less Supermarkets, Inc. v. Superior Court (1995) 40 Cal.App.4th 651, 657-58; Mot. 3.)

[2] Plaintiff acknowledges in his reply papers that the instant motions were improperly reserved as Motions to Compel Further Discovery Responses on the Court’s online Reservation System. Plaintiff’s counsel attests that he attempted to change the category of the motions but was unable to do so. The Court will exercise its discretion to consider the motions at this time. However, Plaintiff’s counsel is reminded to that all motions are properly reserved by category type in the future.

[3] With his reply, Plaintiff submits eight objections, which are not numbered, to defense counsel’s declaration submitted with the opposition. The objections are not material to the outcome of the motion. Nonetheless, the Court will address the objections in the order presented. Objections 1-3 and 5-6 are sustained. Objections 4 and 7-8 are overruled.