Case Number: BC629011 Hearing Date: December 17, 2019 Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

MONICA FELIX,

Plaintiff(s),

vs.

CITY OF POMONA, ET AL.,

Defendant(s).

CASE NO: BC629011

[TENTATIVE] ORDER CONTINUING HEARING ON MOTION FOR TERMINATING SANCTIONS; IMPOSING MONETARY SANCTIONS

Dept. 3

1:30 p.m.

December 18, 2019

1. History of Discovery Dispute

Cross-Defendant, West Holt Owners Association propounded discovery on Plaintiff on 9/20/18. Plaintiff served responses on 3/14/19. The parties participated in an IDC on 5/14/19. At that time, Plaintiff agreed to serve supplemental responses. Despite further meet and confer efforts, Plaintiff has not done so. On 7/30/19, Defendant filed and served motions to compel further responses. On 10/10/19, the Court granted Defendant’s unopposed motions to compel further responses and imposed sanctions in the amount of $4803.30. The Court ordered Plaintiff to serve further responses within ten days and pay sanctions within twenty days.

2. Motion for Terminating Sanctions

a. Parties’ Positions

On 11/07/19, Defendant filed this motion for terminating sanctions, contending Plaintiff had not complied with the 10/10/19 order.

On 12/03/19, Plaintiff filed and served opposition to the motion, contending (a) Plaintiff served supplemental responses on 12/03/19, (b) Plaintiff’s attorney’s mother was critically ill and ultimately passed away on 10/22/19, such that Plaintiff’s ability to respond was hindered, and (c) terminating sanctions are too drastic and should not be imposed.

On 12/10/19, Defendant filed a reply to the opposition, contending (a) the opposition was not properly served and should not be considered, (b) the failure to comply with the 10/10/19 order was inexcusable, and (c) the further responses are unverified and remain deficient.

b. Service of Opposition

Pursuant to CCP §1005(c), Plaintiff was obligated to serve the opposition in a manner calculated to ensure delivery by the next business day. Plaintiff chose to serve the opposition by regular mail, which is not compliant with this requirement. Notably, this Court has previously admonished Plaintiff’s attorney’s office to cease this practice; it appears the practice continues. Because of the extremely harsh nature of the relief requested, the Court cannot, in good faith, refuse to consider the opposition. The Court will, however, consider this improper service as a factor in connection with its discussion of monetary sanctions, below.

c. Terminating Sanctions

The decision of whether or not to impose terminating sanctions is a difficult one. On the one hand, the discovery at issue has been pending since 9/20/18, and Plaintiff has failed to properly respond for over a year. On the other hand, the Court does find Plaintiff’s attorney’s mother’s illness and death compelling as it relates to the relatively recent failure to comply with the 10/10/19 order. On the “third hand,” the fact that the further responses are unverified and remain deficient is extremely frustrating.

Compounding the issue, trial in this matter is scheduled for 1/29/20, making time of the essence. On balance, the Court is inclined to continue the hearing on the motion for terminating sanctions for three weeks, to 1/09/20 at 1:30 p.m. in Department 3 of the Spring Street Courthouse. Plaintiff must serve verified supplemental responses, addressing each and every deficiency previously identified, on or before 12/30/19. The parties must submit briefs concerning any remaining issues on or before 1/03/20, with courtesy copies submitted directly to the department. If Defendant’s brief identifies remaining deficiencies, Plaintiff’s attorney must be prepared to PERSONALLY appear (no court call) on 1/09/20 and discuss each and every remaining deficiency identified by Defendant.

d. Monetary Sanctions

The Court finds monetary sanctions are appropriate. The Court is sympathetic to Plaintiff’s attorney’s situation with his mother. However, as noted above, this discovery has been pending for over a year. Additionally, Plaintiff failed to properly serve the opposition papers. Finally, Plaintiff’s opposition papers list two attorneys, Raymond Ghermezian AND David Azizi, as Plaintiff’s attorneys of record. There is no explanation, in the opposition, for why Azizi could not have complied with the 10/10/19 order in a timely fashion.

Defendant seeks monetary sanctions in the amount of $4254.15, which amount is reasonable and supported by the Declaration of Counsel in support of the motion. Defendant seeks sanctions against Plaintiff and her attorney of record, jointly and severally. The Court finds the failure to timely and properly respond lies entirely with Counsel, and therefore imposes sanctions solely against Counsel, and not against Plaintiff.

Plaintiff’s attorney of record, Raymond Ghermezian, is ordered to pay sanctions to Defendant, by and through its attorney of record, in the total amount of $4254.15 within twenty days.

Moving Defendant is ordered to give notice.