Case Number: BC540867 Hearing Date: March 09, 2018 Dept: 50

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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:

March 9, 2018

Hearing Time:

8:30 a.m.

[TENTATIVE] ORDER RE:

PLAINTIFF/CROSS-DEFENDANT DAN MARKEL’S MOTION FOR EVIDENTIARY, ISSUE, TERMINATING AND MONETARY SANCTIONS AGAINST CROSS-DEFENDANT LEONARD BABAIE; REQUEST FOR MONETARY SANCTIONS AGAINST DEFENDANT/CROSS-DEFENDANT LEONARD BABAIE IN THE SUM OF $9,640.00

AND RELATED CROSS-COMPLAINT

Factual Background

Plaintiff and Cross-Defendant Dan Markel (“Markel”) moves the Court to issue evidentiary, issue, terminating, and monetary sanctions against Defendant and Cross-Complainant Leonard Babaie (“Babaie”).

On November 29, 2017, following an Informal Discovery Conference (“IDC”) regarding three motions to compel further responses filed by Markel against Babaie, the parties entered into a Stipulation and Order as follows:

Babaie was to provide further responses to Form Interrogatories, Nos. 2.7, 6.4, 8.7, 9.2, 12.1, and 50.1(e);

Babaie was to provide further responses to Special Interrogatories, Nos. 52, 53,

Babaie was to provide further responses to Requests for Production, Nos. 8, 10, 29, 30, 31, 32, 54, and 62; and

Babaie was to produce all documents being sought that were in his possession, custody, and control. (Murphy Decl., Ex. 2.)

The deadline for Babaie to comply with the Stipulation and Order was December 20, 2017. (Murphy Decl., Ex. 2.)

On December 20, 2017, Babaie served further responses to the Requests for Production, but they were unverified and Markel found them to be noncompliant with Code of Civil Procedure section 2030.010. (Murphy Decl., ¶ 16.) Babaie also failed to produce documents responsive to Request for Production, Nos. 54 and 62. (Murphy Decl., ¶ 16.)

Request for Judicial Notice

Babaie’s Request for Judicial Notice is granted.

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. (Code Civ. Proc., section 2023.030(d).)

“[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.)

Here, the Court finds that Babaie failed to comply with the Stipulation and Order. In further response to Request for Production Nos. 54 and 62, Babaie identifies certain documents as exhibits, presumably because they were produced concurrently with the written response, and then states that other documents are in Markel’s or the IRS’ possession, or that the documents are public record. Babaie’s responses are not sufficiently compliant with Code of Civil Procedure section 2031.210 as they do not state that he will either comply or that he lacks the ability to comply. However, because Markel fails to include in his Separate Statement Babaie’s original responses to Request for Production Nos. 54 and 62, the Court is unable to determine whether the further responses evidence the type of egregious behavior that would justify terminating sanctions. Based on the evidence before it, the Court does not find that these responses warrant terminating, issue, or evidentiary sanctions as requested by Markel.

Babaie argues that Markel did not meet and confer in good faith prior to filing the instant motion; however, as noted by Markel, there is no meet and confer requirement for motions seeking sanctions for a party’s failure to comply with a discovery order. Babaie further argues that Markel comes with “unclean hands” because he himself has been subject to terminating sanctions. Even if true, that would not justify Babaie’s failure to comply with the Stipulation and Order.

The Court finds that less severe sanctions will produce compliance and therefore will award monetary sanctions to Markel in having to bring a motion to compel compliance with the Stipulation and Order. Because the issues raised in the instant motion only relate to the further responses to the Requests for Production, the Court will only grant sanctions as to the time spent on the instant motion in the amount of $5,260.00.

Conclusion

For the foregoing reasons, Markel’s Motion for Evidentiary, Issue, Terminating, and Monetary Sanctions is granted in part. Babaie is ordered to produce all documents in his possession, custody, and control responsive to Requests to Produce Nos. 54 and 62 and to also provide verified supplemental written responses to Requests to Produce Nos. 54 and 62 in conformity with Code of Civil Procedure section 2031.210 within 20 days of this Order. Babaie is further ordered to pay monetary sanctions in the amount of $5,260.00 to Market within 20 days of this Order.

Markel is to provide notice of this ruling.

DATED: March 9, 2018 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court