Judge Thomas D. Long, Case Number: 22STCV08160, Date: 2023-07-13 Tentative Ruling

On March 7, 2022, Plaintiff Prometheus Management, LLC filed this action against Defendants Pineapple Park, LLC, Pineapple Ventures, Inc., and Vincent Zadeh (erroneously sued as Vincent Mehdizadeh). The Court later entered default against Pineapple Park, LLC.

On March 28, 2023, the Court granted Plaintiff’s motions to compel Pineapple Ventures’s and Zadeh’s responses to Plaintiff’s (1) Form Interrogatories, Set One; (2) Special Interrogatories, Set One; and (3) Requests for Production of Documents, Set One. The Court ordered responses within 21 days. The Court also ordered the payment of monetary sanctions within 21 days.

Defendants did not timely comply with the order. On May 8, 2023, Plaintiff’s counsel emailed Defendants’ counsel, providing them until May 12, 2023 to serve responses. On May 12, 2023, Defendants’ counsel asked for another extension, until May 15. (Amended Kim Decl. ¶ 7.) (Amended Kim Decl., Ex. 2 at p. 3.)

On May 15, 2023, Defendants’ counsel emailed Plaintiff’s counsel: “I am still waiting for verifications, some documents and a few responses. I know discovery has been a long time coming but we have some gaps in the information we have in our file and what we need to have full and forthcoming responses. Because of my trial in OC, I am backed up. Please allow me until the end of the week to get you full and forthcoming verified responses without objections.” (Amended Kim Decl., Ex. 2 at p. 4.) Plaintiff’s counsel responded the next morning: “Mainak, it's a court ordered deadline that you and your clients blew. We don’t have authority to extend it - you need permission from the court. I gave you a courtesy last week of giving you additional time and notice before filing more motions. We’ll be moving for additional sanctions by the end of this week.” (Amended Kim Decl., Ex. 2 at p. 4.)

On Thursday, May 25, 2023, Plaintiff filed two motions for terminating sanctions. Eleven minutes after the first motion was electronically filed, Defendants’ counsel emailed Plaintiff’s counsel, stating, “You just served us with motions but we served responses on Monday. See below.” (Amended Kim Decl., Ex. 3 at p. 1.)

On May 31, 2023, Plaintiff filed amended motions. Defendants did not file any oppositions.

A court may impose a terminating sanction against anyone engaging in conduct that is a misuse of the discovery process. (Code Civ. Proc., § 2023.030, subd. (d).) Misuse of the discovery process includes failing to respond to discovery, unjustifiably making unmeritorious objections to discovery, and disobeying a court order to provide discovery. (Code Civ. Proc., § 2023.010.) “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.’ [Citation.] Generally, ‘[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.’” (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390.)

Defendants’ failure to provide timely discovery responses does not warrant the imposition of terminating or other discovery sanctions, especially when those responses were in fact served before Plaintiff filed these motions. Plaintiff contends that counsel was unaware of Defendants’ May 22, 2023 service of responses when originally filing the motions for terminating sanctions. (Amended Kim Decl. ¶ 8.) “Service was improperly effectuated to only lead counsel, who was in trial, and I was unaware of such service when Plaintiff filed his two motions for terminating sanctions on May 25, 2023, thus necessitating this amended notice of motion and motion, and supporting papers.” (Amended Kim Decl. ¶ 8.) Plaintiff’s statement that “the office did not receive service at the ‘electronic service address at or through which a person receives electronic service’” (Amended Kim Decl., Ex. 3 at p. 2) is not correct: Plaintiff’s counsel electronically served at least one member of Defendants’ counsel, and the office is expected to internally communicate.

Plaintiff’s counsel’s position that they “don’t have authority to extend” the deadline for Defendants’ responses is not fully correct. (Amended Kim Decl., Ex. 2 at p. 4.) It is true that Plaintiff cannot extend a court deadline or court order, but Plaintiff’s counsel can extend a personal courtesy to opposing counsel who was attempting to get complete responses and was busy in another trial. Plaintiff’s failure to do so is ironic when also considering Plaintiff’s excuse for originally filing these motions three days after Defendants’ production. The responses were served on Plaintiff’s lead counsel, who was in trial, and counsel who filed these motions “was unaware of such service.” (Amended Kim Decl. ¶ 8.) Plaintiff’s counsel cannot fairly use trial as their excuse for overlooking Defendants’ responses after Plaintiff’s counsel refused to accommodate Defendants’ counsel’s own trial-related time limitations.

Plaintiff also argues that the responses to RFPs are not statutorily compliant, and no documents were produced. (Amended Motion at pp. 4-5; Amended Kim Decl. ¶¶ 9-10.) The remedy for this is to meet and confer and, if necessary, to file a motion to compel further responses (following the procedures outlined in Exhibit A of Department 48’s Courtroom Information, available on the court’s website). Terminating sanctions are not warranted for deficient responses.

Finally, with respect to Defendants’ failure to pay previously imposed monetary sanctions (Amended Kim Decl. ¶ 11), the Court will not award additional monetary sanctions or terminating sanctions on this basis. An order for monetary sanctions is enforceable in the same manner as a judgment, so Plaintiff has an alternative remedy. (See Code Civ. Proc., §§ 680.230, 680.270, 699.510.)

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court