Judge: Virginia Keeny, Case: 19VECV01611, Date: 2023-02-22 Tentative Ruling

Case Number: 19VECV01611    Hearing Date: February 22, 2023    Dept: W

almas & son, llc v. nai capital, inc.

defendant patrick ortiz’s motions to compel discovery

Date of Hearing:        February 22, 2023                 Trial Date:       None set.

Department:              W                                            Case No.:        19VECV01611

Moving Party:             Defendant Patrick Ortiz

Responding Party:     Plaintiff Almas & Son, LLC

BACKGROUND

Plaintiff Almas & Son, LLC alleges it entered into an agreement with Defendants Nai Capital, Inc. and Patrick Ortiz where Defendants were to find Plaintiff a suitable tenant for their commercial building. Plaintiff alleges Defendants represented to Plaintiff they found a tenant who would run a legal smoke shop and ran a background check on the tenant; however, these representations were false. Plaintiff alleges Defendants did not run a background check and the tenant operated a cannabis shop in violation of the agreement and as prohibited by the Department of Cannabis Regulation.

On November 12, 2019, Plaintiff filed a complaint alleging: 1) Breach of Contract; 2) Breach of Implied Covenant of Good Faith and Fair Dealing; 3) Intentional Misrepresentation and Fraud; 4) Negligence Misrepresentation; 5) Restitution and Unjust Enrichment; 6) Breach of Fiduciary Duty of Real Estate Broker; and 7) Violation of Business and Professional Code §17200. On February 10, 2020, Plaintiff named Chris Jackson as Defendant Doe 1.

On February 7, 2020, Defendant NAI Capital, Inc. filed Notice of Bankruptcy and Automatic Stay with the court.

[Tentative] Ruling

Defendant Patrick Ortiz’s Motions to Compel Discovery are MOOT.

ANALYSIS

Defendant Ortiz moves the court for an order compelling Plaintiff Almas & Sons, LLC to provide verified responses, without objections, to Defendant Ortiz’s Special Interrogatories (Set One), Form Interrogatories (Set One), and Demands for Production of Documents (Set One).

If a party to whom interrogatories or a demand for production were directed to fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. (CCP §§2030.290(b); 2031.300(b); see Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 404.) The moving papers need only show that a set of interrogatories and demand for production was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. (See Leach v. Sup. Ct. (Markum) (1980) 111 Cal.App.3d 902, 906-906.) 

Defendant Ortiz presents evidence they properly propounded discovery onto Plaintiff, the time to respond has expired, and Defendant Ortiz did not receive any kind of response to the discovery requests. (Zampiello Decl. ¶¶3-6, Exhs. B-D.) Defendant Ortiz also requests monetary sanctions against Plaintiff Almas & Son, LLC and its counsel, Behrouz Shafie, Esq., jointly and severally, in the total sum of $8,013.00, or $2,671.00 per Motion. (Zampiello Decl. ¶7.)

Plaintiff opposes the motion and attaches Plaintiff’s discovery responses to Defendant Ortiz’s discovery requests. (Shafie Decl. ¶4, Exh. 1.) Plaintiff’s counsel states that he was unable to provide responses to Defendant’s discovery requests as his client was stuck in Iran and could not respond to the requested discovery. (Shafie Decl. ¶3.) When his client was finally able to leave Iran, Plaintiff served Defense counsel. (Shafie Decl. ¶4.) Accordingly, the instant motions are MOOT.

Defendant Ortiz also seeks monetary sanctions in the amount of $2,671.00 per  motion for .5 hours meeting and conferring, 12 hours preparing the three motions, 3 hours for reviewing any opposition and preparing a reply, and 2 hours for attending the hearing at counsel’s hourly rate of $450.00 as well as $120 in filing fees for the three motions and $18 in electronic filing charges. (Zampiello Decl. ¶7.)

However, the court finds the imposition of sanctions unjust. (See CCP §§2030.290(c), 2031.300(c).) Accordingly, Defendant Ortiz’s request for monetary sanctions against Plaintiff and Plaintiff’s counsel, jointly and severally, is DENIED.