Case Number: EC057389    Hearing Date: July 18, 2014    Dept: NCB

11. EC057389
KHACHIK KESHESHYAN et al v. PETROS GUMRIKYAN et al
Motions for:
1. Order imposing terminating sanctions on the Defendants.
2. Order compelling deposition of Defendant, Petros Gumrikyan; order imposing monetary sanctions of $7,840.
3. Order compelling the inspection of the Defendants’ premises; order imposing monetary sanctions of $7,840.
4. Order compelling further responses to requests for production; order imposing monetary sanctions of $7,840.

This case arises from the Plaintiffs’ claim that they Defendant, Sarkis Gumrikyan, engaged in a fraudulent conveyance of the business entities, GPHS, Inc., 1s GPS, Inc., and GPS, Inc., to his son, Petros Gumrikyan, in order to avoid paying a judgment.
Trial is set for August 11, 2014.

This hearing concerns the following motions of the Plaintiffs:

1) a motion for terminating sanctions;
2) a motion to compel the deposition of Petros Gumrikyan;
3) a motion to compel the inspection of the Defendants’ premises; and
4) a motion to compel further responses to requests for production.

An initial issue is that the Defendant, Sarkis Gumrikyan, has filed a notice that he has obtained a bankruptcy discharge of the underlying judgment at issue in this case. Under 11 USC section 362(a)(1), actions “against the debtor” or “to recover a claim against the debtor” are subject to the automatic bankruptcy stay. The latter category includes cases in which the debtor is not a defendant, e.g., fraudulent conveyance claims against a third party. In re Colonial Realty Co. (2nd Cir., Conn. 1992) 980 F.2d 125, 131-132. Although a fraudulent transfer action may be an action against a third party, it is also an action “to recover a claim against the debtor.” Id. Absent a claim against the debtor, there is no independent basis for the action against the transferee. Id.
In the pending case, the Plaintiffs’ theory is that Sarkis Gumrikyan attempted to avoid paying the judgment by making a fraudulent conveyance of business entities to his son. If the judgment has been discharged, the Plaintiffs cannot bring the pending action against Sarkis Gumrikyan and has no independent basis to bring the action against the transferee, Petros Gumrikyan.
Accordingly, the Court issues an Order to Show Cause to Plaintiff as to why this action should not be dismissed as a result of the underlying Order having been discharged in bankruptcy.
The following analysis considers the Plaintiffs’ motions on calendar.

1. Motion for Terminating Sanctions
This is the Plaintiffs’ third motion for terminating sanctions. The first motion was denied on May 22, 2013. The second motion was denied on May 16, 2014.
The Plaintiffs argue in their third motion for terminating sanctions that the Court should impose terminating sanctions on the Defendants because the Defendants have failed to comply with a discovery order issued on September 20, 2012. At the September 20, 2012 hearing, the Court issued the following discovery orders:

1) the Defendants were ordered to serve further responses to Plaintiffs’ form interrogatories and special interrogatories without objections within 10 days;
2) the Defendants were ordered to serve further responses to Plaintiffs’ requests for production without objections within 10 days; and
3) monetary sanctions of $3,370 were imposed on the Defendants and their counsel.

The Plaintiffs have already sought terminating sanctions based on the claim that the Defendants did not comply with the September 20, 2012 order. The Court denied the prior motion on May 16, 2014.
Under CCP section 1008, any party affected by a Court’s order may seek reconsideration of that order by filing an application within 10 days after service of the notice of entry of the order. The application must be based on new or different facts, circumstances, or law, and be made to the same judge that made the order. The party making the application must state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. CCP section 1008(e) states that CCP section 1008 specifies the Court’s jurisdiction with regard to applications for reconsideration and that no application to reconsider any order may be considered unless made according to section 1008. The language of CCP section 1008(e) makes it absolutely clear that a Court’s power to hear successive motions is restricted to motions that comply with CCP section 1008, subdivisions (a) and (b). Scott Co. v. United States Fidelity & Guaranty Ins. Co. (2003) 107 Cal. App. 4th 197, 211.
The Plaintiffs did not comply with any of the requirements of CCP section 1008(a). For example, the Plaintiffs did not file the declaration required under CCP section 1008(a) that states the required facts or that identifies a new fact, circumstance, or law.
Accordingly, the Court denies the Plaintiffs second motion for terminating sanctions because the Plaintiffs failed to comply with CCP section 1008 and the Court lacks jurisdiction to hear the motion.

Further, the Court found on May 16, 2014, that the Defendants complied with the Court’s September 20, 2012 order when they served supplemental responses on May 14, 2013. Since the Defendants complied with the Court’s September 20, 2012 order, there are no grounds to impose any discovery sanctions on the Defendants. If the Plaintiffs had any dispute about the Defendants’ supplemental discovery responses, then the Plaintiffs should have made a timely attempt to meet and confer about the supplemental responses and then filed a timely motion to compel further responses.

Therefore, the Court denies the Plaintiffs’ motion for terminating sanctions.

2. Motion to Compel Deposition of Defendant, Petros Gumrikyan
The Plaintiffs request that the Court order Petros Gumrikyan to appear for his deposition. The Plaintiffs’ attorney, Michael Rubin, states in paragraph 3 that on May 16, 2014, the Plaintiffs served a notice of deposition on Petros Gumrikyan. In paragraph 6, Mr. Rubin states that the deposition is set for July 9, 2014 and July 10, 2014.
However, Mr. Rubin filed the pending motion on July 1, 2014, which was eight days before the deposition was set to occur. Mr. Rubin states in paragraph 7 that he anticipates that the deposition will not occur.
Under CCP section 2025.450, the Court may order a party to appear for a deposition when the party has failed to appear for or to proceed with a properly noticed deposition. Since the Plaintiffs’ motion fails to demonstrate that Petros Gumrikyan failed to appear for his deposition, it fails to demonstrate any grounds to issue the requested order.
Further, the opposition papers indicate that the deposition occurred on July 9, 2014.

Therefore, the Court denies the Plaintiffs’ motion to compel the deposition of Petros Gumrikyan in its entirety.

Under CCP section 2023.010(h), it is a misuse of discovery to making a motion to compel without substantial justification. The pending motion was made without substantial justification because it was made before the agreed upon deposition was to occur.
The Defendants request monetary sanctions of $2,250. Under CCP section 2023.030, the Court may impose monetary sanctions on a party that misuses discovery. Since the Plaintiffs’ motion was a misuse of discovery, the Court imposes monetary sanctions on the Plaintiffs and their attorney, Michael Rubin.
The Defendants’ attorney, Neil Evans, provides facts in paragraph 3 of his declaration to demonstrate that he spent 7.5 hours preparing his opposition and that he bills $300 per hour. The Court finds this a reasonable amount.
Accordingly, the Court imposes monetary sanctions of $2250 (7.5 hours at $300 per hour) on the Plaintiffs and their attorney, Michael Rubin.

3. Motion Compelling the Inspection of the Defendants’ Premises
The Plaintiffs request that the Court order Petros Gumrikyan to submit his body shop business and restaurant business to an inspection. The Plaintiffs’ attorney, Michael Rubin, states in paragraph 3 that on May 16, 2014, the Plaintiffs served a demand for the inspection of the body shop business and the restaurant business of Petros Gumrikyan.
This motion was also filed without substantial justification. The opposition papers include facts in the declaration of Defendants’ counsel, Neil Evens, to demonstrate that the parties agreed to hold the inspections of the body shop on July 8, 2014 at 1:00 pm and of the restaurant at 3:00 pm. Mr. Evans states in paragraph 2 of his declaration that the inspections occurred on July 8, 2014. Mr. Evans states that Mr. Rubin’s inspection of the body shop took 5 minutes and Mr. Rubin’s inspection of the restaurant took 10 minutes. Further, Mr. Evans states that when Mr. Rubin’s client arrived, he authorized a second inspection of the restaurant and that this second inspection took 7 minutes.

The Defendants request monetary sanctions of $2,250. Under CCP section 2023.030, the Court may impose monetary sanctions on a party that misuses discovery. Since the Plaintiffs’ motion was filed without substantial justification, it is a misuse of discovery under CCP section 2023.010 and the Court imposes monetary sanctions on the Plaintiffs and their attorney, Michael Rubin.
The Defendants’ attorney, Neil Evans, provides facts in paragraph 3 of his declaration to demonstrate that he spent 7.5 hours preparing his opposition and that he bills $300 per hour. The Court finds this to be a reasonable amount. Accordingly, the Court imposes monetary sanctions of $2250 (7.5 hours at $300 per hour) on the Plaintiffs and their attorney, Michael Rubin.

4. Motion to Compel Further Responses to Requests for Production
The Plaintiffs request an order compelling the Defendant, Petros Gumrikyan, to serve further responses to requests for production. The moving parties seek relief under CCP section 2031.310.

The moving papers do not comply with CCP section 2031.310(b)(1) because the motion does not set forth specific facts showing good cause justifying the discovery sought by the demand. In law and motion practice, factual evidence is supplied to the court by way of declarations. Calcor Space Facility v. Superior Court (1997) 53 Cal. App. 4th 216, 224 (rejecting facts supporting the production of documents that were in a separate statement because the document was not verified and did not constitute evidence). In Calcor, the Court of Appeal issued a writ of mandate issue directing the trial court to vacate its order compelling the defendant to produce records because the plaintiff had failed to provide specific facts showing good cause for their production.
The same problem exists here. The declaration of the moving parties’ attorney, Michael Rubin, lacks any specific facts showing good cause for the inspection of any of the documents sought in the requests for production. This is the first ground to deny the motion.

Further, the opposition papers state that the Plaintiffs are seeking relief regarding responses that were served on May 14, 2013. A review of the Plaintiffs’ motion reveal no evidence of the date of the responses at issue.
Under CCP section 2031.310, a propounding party waives any right to compel a further response unless the party seeks relief within 45 days after the response or supplemental response was served, or on or before any specific later date to which the propounding party and the responding party have agreed in writing. Failure to timely move to compel within the specified period constitutes a waiver of any right to compel a further response. Sexton v. Superior Court (1997) 58 Cal. App. 4th 1403, 1410. The time period is mandatory and jurisdictional in the sense that it renders the Court without authority to rule on motions to compel other than to deny them. Id.
The Plaintiffs fail to demonstrate that the Court has jurisdiction. The Plaintiffs have drafted a separate statement in which they identify the responses at issue. However, the Plaintiffs did not identify when the Defendants served the discovery responses at issue in order to establish that the Court has jurisdiction and that the Plaintiffs did not waive their right to seek further responses.
Further, the opposition papers indicate that the responses identified in the Plaintiffs’ separate statement were personally served on Plaintiffs’ counsel at a hearing on May 14, 2013. The Plaintiffs had 45 days to file a motion to compel further responses.
This action was stayed from May 22, 2013 to March 21, 2014 by the petition for bankruptcy. The 45 day time period ended on April 27, 2014. The Plaintiffs filed the pending motion on June 11, 2014. Since the Plaintiffs did not file a motion within the required time, the Plaintiffs waived the right to seek further responses and the Court is without authority to rule on the motion other than to deny the motion. This is the second ground to deny the motion.

Therefore, the Court denies the Plaintiffs’ motion because there is no declaration that complies with CCP section 2031.310(b)(1) and because the Plaintiffs did not file their motion within the time required under CCP section 2031.310.

The Defendants request monetary sanctions of $2,250. Under CCP section 2031.310, the Court may impose monetary sanctions on a party that unsuccessfully moves for an order compelling further responses. Since the Plaintiffs’ motion is unsuccessful, there are grounds to impose monetary sanctions.
The Defendants’ attorney, Neil Evans, provides facts in paragraph 13 of his declaration to demonstrate that he spent 7.5 hours preparing his opposition and that he bills $300 per hour.
Accordingly, the Court imposes monetary sanctions of $2250 (7.5 hours at $300 per hour) on the Plaintiffs and their attorney, Michael Rubin.

Sanctions to be payable within 30 days.