Judge: Virginia Keeny, Case: BC722892, Date: 2025-03-27 Tentative Ruling
Case Number: BC722892 Hearing Date: March 27, 2025 Dept: 45
LATANNYA BANKS, ET AL. v. THE LOFTS AT THE SECURITY BUILDING, ET AL.
DEMURRER WITH MOTION TO STRIKE FIRST AMENDED COMPLAINT
Date of Hearing: March 27, 2025 Trial Date: June 23, 2025
Department: 45 Case No.: BC722892
Moving Parties: Defendants Simpson Property Group, L.P. (erroneously sued and served as The Simpson Property Group) and Security Building Loft Partners, L.P. (erroneously sued and served as The Lofts At The Security Building)
Responding Parties: Plaintiffs Latannya Banks and Lelah Bank. Plaintiffs opposition was not timely filed.
BACKGROUND
Plaintiffs Latannya Banks, Lelah Banks, a minor, and Edna Essien initiated this action on September 24, 2018. Plaintiffs filed the operative First Amended Complaint (“FAC”) on July 8, 2021 against Defendants The Lofts at the Security Building, The Simpson Property Group, PPC Property Management, Inc. Iraj Pessian, and Peter Afrooz, alleging causes of action for: (1) Battery; (2) Negligence; (3) Intentional Infliction of Emotional Distress; (4) Breach of Implied Warranty of Habitability; (5) Breach of Covenant of Quiet Enjoyment; (6) Violation of Civil Code §1942.4; and (7) Public Nuisance.
Plaintiffs allege that they sustained injuries from bedbug bites during their stay at an apartment complex owned and operated by Defendants.
[Tentative] Ruling
Defendants’ motion for terminating, issue, and evidentiary sanctions, and the request to hold Plaintiffs and their counsel in contempt is denied.
Defendants’ motion for monetary sanctions is granted. Plaintiffs and their counsel of record Ilan N. Rosen and Shelan Toma are ordered to pay monetary sanctions to Defendants’ counsel in the amount of $3,210, jointly and severally, within 20 days of this order.
LEGAL STANDARD
Terminating Sanctions
CCP section 2023.030 provides that, "[t]o the extent authorized by the chapter governing any particular discovery method..., the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose... [monetary, evidence, and terminating] sanctions against anyone engaging in conduct that is a misuse of the discovery process...." CCP section 2023.010 provides that "[m]issues of the discovery process include, but are not limited to, the following:... (d) Failing to respond or to submit to an authorized method of discovery.... (g) Disobeying a court order to provide discovery...."
"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.'" (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390 (quoting Lang v. Hachman (2000) 77 Cal.App.4th 1225, 1246).) "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, supra, 223 Cal.App.4th at p. 390 (citation omitted).)
"Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders." (Id. (citing Lang, supra, 77 Cal.App.4th at pp. 1244- 1246); see, e.g., Collisson X Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617-1622 (terminating sanctions imposed after defendants failed to comply with one court order to produce discovery); Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal App 3d 481, 491 (disapproved on other grounds in Garcia v. McCucchen (1997) 16 Cal.4th 469, 478, n. 4) (terminating sanctions imposed against plaintiff for failing to comply with a discovery order and for violating various discovery statutes).)
Contempt
The contempt at issue is “indirect,” which requires a more elaborate procedure to notify the person(s) sought to be charged and to allow him or her an opportunity to be heard. (Code Civ. Proc., §§ 1211–1218; see also Hanson v. Superior Court, supra, 91 Cal.App.4th at p. 81.) “An affidavit must be presented to the court stating the facts constituting the contempt, an order to show cause must be issued, and hearing on the facts must be held by the judge.” (Arthur v. Superior Court (1965) 62 Cal.2d 404, 407-408.) Since the acts involved did not occur in the court’s presence, the affidavit (declaration) must cover each element of the commission of the contempt. (Code Civ. Proc., § 1211.5.) This affidavit serves as the “complaint” in indirect contempt proceeding (Lyon v. Superior Court (1968) 68 Cal.2d 446, 452) and must contain factual allegations based on firsthand knowledge.
In indirect contempt proceedings based on disobedience of a prior court order, a valid judgment must meet “strict requirements.”¿ Each of the following must be established: (1) the rendition of a valid court order; (2) actual knowledge of the order; (3) ability to comply; and (4) willful disobedience of the order. (Conn v. Superior Court (1987) 196 Cal.App.3d 774, 784 [repeated failures to turn over documents as ordered].) Upon receipt of the affidavit, the court usually issues an order to show cause (OSC) why the person should not be held in contempt. (Code Civ. Proc., § 1212.) Although not required, the alleged contemnor may respond to the affidavit and OSC by counteraffidavits or declarations. These affidavits serve as the “answer” to the charging allegations in the original affidavit. (Lyon v. Superior Court, supra, 68 Cal.2d at p. 452.) Such affidavits are not mandatory, however. The alleged contemnor may assert his or her defenses entirely at the hearing. (Code Civ. Proc., § 1217.)
ANALYSIS
Defendants move for terminating, evidentiary or issue sanctions, and to hold Plaintiffs and their counsel Ilan N. Rosen and Shelan Toma in contempt, on the ground that Plaintiffs failed to comply with multiple Court orders to appear for depositions. Defendants contend that have been attempting to complete Plaintiffs' depositions since January 2022, but their efforts have been repeatedly thwarted by Plaintiffs' failure to cooperate in discovery.
On April 17, 2023, the Court granted Defendants' motions to compel the second session of deposition of all three Plaintiffs and ordered Plaintiffs to personally appear for their depositions on May 25 and May 26, 2023. (Bukovskis Decl., ¶ 3, Exh. A.) Plaintiffs failed to appear. (Id., ¶ 4.)
On August 16, 2023, the Court continued Defendants’ motion for terminating sanctions, but ordered all three Plaintiffs to appear for their depositions. (Id., Exh. B.)
On November 17, 2023, the Court denied Defendants’ motion for terminating sanctions, continued Plaintiffs Latannya Banks and Lelah Banks second session of their depositions to January 30, 2024, and found Plaintiff Edna Essien in compliance with the Court’s November 8, 2023 order. (Id., ¶ 6, Exh. C.) Plaintiffs failed to appear for their depositions. (Id., ¶ 7.)
On September 17, 2024, and October 15, 2024, the Court granted Defendants' motions to compel Plaintiffs Latannya Banks and Lelah Banks’ further depositions, requiring Plaintiffs to complete their depositions and comply within 30 days of the Court's orders. (Id., ¶ 9, Exhs. D-E.) Plaintiffs, however, once again failed to appear for their depositions as required. (Id., ¶ 9.)
It appears that Plaintiffs Latannya Banks and Lelah Banks have complied with the Court’s orders as they provide that they appeared for deposition on March 13, 2025. (Toma Decl., ¶ 4.) Further, it also appears Defendants seek relief against Latannya Banks and Lelah Banks and not Edna Essien, although it is difficult to tell as Defendants’ refer to Plaintiffs collectively in certain instances and only refer to the Banks in other instances. The Court also notes that it appears the Court accepted Plaintiff Eissen’s explanations and found her in compliance in its November 17, 2023 minute order. Therefore, the motion for terminating, issue, or evidentiary sanctions, and to hold Plaintiffs and their counsel in contempt is denied, as plaintiffs have ultimately complied with the court’s orders, at least with respect to completion of the depositions. The court declines to issue an OSC re contempt for non-payment of court-ordered fees.
Defendants also request monetary sanctions in the amount of $3,210.00 against Plaintiffs, and their attorneys of record, jointly and severally, for the costs associated with bringing this Motion. The Court finds that monetary sanctions are warranted in light of Plaintiff’s failure to comply with the Court orders within the Court-ordered deadlines. Taking into consideration the number and difficulty of issues raised in the papers, as well as the delay Plaintiffs caused on these discovery issues, the Court finds Defendants’ requested hours are reasonable. Thus, Plaintiffs and their counsel of record Ilan N. Rosen and Shelan Toma are ordered to pay monetary sanctions in the amount of $3,210 ($225 per hour for 14 hours, plus $60 filing fee), jointly and severally, within 20 days of this order.
Lastly, Defendants request that the Court order the previously imposed sanctions to be paid. However, orders imposing monetary sanctions have the force and effect of a money judgment, and are immediately enforceable through the enforcement of judgment laws. (Newland v. Superior Court (1995) 40 Cal. App. 4th 608, 615). As such, Defendants’ remedy is to enforce the sanction orders as a money judgment.
CONCLUSION
The motion for terminating, issue, and evidentiary sanctions, and the request to hold Plaintiffs and their counsel in contempt is denied.
The motion for monetary sanctions is granted. Plaintiffs and their counsel of record Ilan N. Rosen and Shelan Toma are ordered to pay monetary sanctions to Defendants’ counsel in the amount of $3,210, jointly and severally, within 20 days of this order.