Case Number: BC540867 Hearing Date: April 30, 2018 Dept: 50

Superior Court of California

County of Los Angeles

Department 50

jm van nuys, llc, et al.

Plaintiffs,

vs.

leonard babaie, et al.

Defendants.

Case No.:

BC 540867

Hearing Date:

April 30, 2018

Hearing Time:

8:30 a.m.

[TENTATIVE] ORDER RE:

DEFENDANT AND CROSS-COMPLAINANT LEONARD BABAIE’S MOTION FOR TERMINATING, ISSUE, EVIDENCE, MONETARY SANCTIONS

AND RELATED CROSS-COMPLAINT

Background

Defendant and Cross-Complainant Leonard Babaie (“Babaie”) moves the Court to issue evidentiary, issue, terminating, and monetary sanctions against Plaintiffs and Cross-Defendants JM Van Nuys, LLC (“JM Van Nuys”) and Dan Markel (“Markel”) and Plaintiff M and M JM, LLC (“M and M”) for failure to comply with the October 1, 2015 Stipulation and Order re Motion for Sanctions and to Compel Deposition (the “Order”). Markel opposes.

Discussion

Once a motion to compel further responses is granted, continued failure to respond or inadequate responses may result in more severe sanctions. (See, e.g., Code Civ. Proc., § 2031.310(i).) Disobeying a court order to provide discovery is a misuse of the discovery process. (Code Civ. Proc., § 2023.010(g).) There are a broad range of sanctions available against anyone engaging in conduct that is a misuse of the discovery process, including the issuance of a terminating sanction. (Code Civ. Proc., § 2023.030(d).) The Court may impose a terminating sanction by an order striking a pleading, dismissing any part of an action, or rendering a judgment by default. (Ibid.)

“[T]he sanctioned party’s history as a repeat offender is not only relevant, but also significant, in deciding whether to impose terminating sanctions.” (Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1106.) “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.” (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.)

At the outset, the Court notes that no separate statement is required to be filed with a motion seeking imposition of terminating, issue, or evidentiary sanctions for failure to comply with a court order, as such a motion does not involve the “content of a discovery request or the responses to such a request” (Cal. Rules of Court, rule 3.1345(a).) Additionally, there is no meet and confer requirement prior to filing a motion seeking terminating, evidentiary, or issue sanctions. Markel cites California Rules of Court, rule 3.670(f)(2) for the proposition that Babaie was required to meet and confer regarding resolution of discovery issues, but Rule 3.670(f)(2) deals with telephonic appearances, not discovery disputes.

Babaie contends that Markel and/or JM Van Nuys have failed to produce documents responsive to items #6, #10, and #11 listed on the Order. Item #6 encompasses income tax returns of JM Van Nuys for 2011-2014. Item #10 encompasses sales tax returns and receipts, and Item #11 encompasses telephone bills, logs, call to and from Babaie and Jersey Mike’s Franchise Systems, Inc.

In opposition, Markel asserts that all documents that were required to be produced pursuant to the Order have already been produced. In particular, Markel asserts that on June 5, 2017, all responsive documents were produced via email and U.S. mail to counsel for Babaie. (Murphy Decl., ¶ 7, Exs. D, E, F.) Further, on July 20, 2017, counsel for Markel sent counsel for Babaie a Dropbox link containing the same documents. (Murphy Decl., ¶ 8, Ex. G.)

Curiously, Babaie fails to address the document production at all in his reply brief. Counsel for Babaie does not even declare that he reviewed the 675 pages of documents produced by Markel to determine if the allegedly missing documents were included in the production. Instead, Babaie refers to his opposition to Markel’s motion for terminating sanctions (filed February 26, 2018) and his own discovery responses (served December 20, 2017) to support his contention that he had made attempts to meet and confer with Markel about the documents at issue in the instant motion. (Reply, p. 3: 4-8.) The parties disagree on whether this issue was discussed at an informal discovery conference on November 29, 2017. (Murphy Decl., ¶ 11; Tinkerian Decl., ¶ 8.) In any event, the Court finds that there is sufficient evidence that the documents at issue were produced by Markel, and so there is no basis for imposing any sanctions against Markel, JM Van Nuys, or M and M for failure to comply with the Order.

Markel seeks monetary sanctions against Babaie and his counsel for having to oppose the instant motion pursuant to Code of Civil Procedure sections 2023.010(i) and 2023.030(a). Code of Civil Procedure section 2023.010(i) provides that failing to confer in good faith, if meeting and conferring is required by the Code, is a misuse of the discovery process. Here, there was no applicable meet and confer requirement. Markel contends that Babaie and his counsel failed to comply with the Court’s IDC order of October 31, 2017 and Rule 3.670(f)(2) of the California Rules of Court. However, the minute order issued on October 31, 2017 does not order the parties to meet and confer, and as noted earlier, Rule 3.670(f)(2) is not a meet and confer requirement. Code of Civil Procedure section 2023.030(a) provides that monetary sanctions may be imposed if a party engages in the “misuse of the discovery process,” therefore, reference back to Code of Civil Procedure section 2023.010 is necessary. (Code Civ. Proc., § 2023.030(a).) Section 2023.010 lists examples of misuses of the discovery process, but it also notes that misuses of the discovery process are not limited to the specific examples identified therein. (Code Civ. Proc., § 2023.010.) Therefore, the Court finds that Babaie’s filing of the instant unmeritorious motion is a misuse of the discovery process because the evidence shows that the documents sought by Babaie by this motion have already been produced, in multiple formats, and that Babaie has failed to address those facts in either his moving or reply papers. Accordingly, the Court grants monetary sanctions to Markel in the amount of $3,600.00.

Conclusion

For the foregoing reasons, Babaie’s Motion for Evidentiary, Issue, Terminating, and Monetary Sanctions is denied. Babaie is ordered to pay monetary sanctions in the amount of $3,600.00 to Markel, by and through his counsel, within 20 days of this Order.

Markel is to provide notice of this ruling.

DATED: April 30, 2018 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court