Case Number: EC057389 Hearing Date: May 16, 2014 Dept: B

13. EC057389
KHACHIK KESHESHYAN et al v. PETROS GUMRIKYAN
Motion for Terminating and Monetary Sanctions

This case arises from the Plaintiffs’ claim that the 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.

This hearing concerns the Plaintiffs’ motion for terminating sanctions. The Plaintiffs argue that the Court should impose terminating sanctions on the Defendants because they have refused to comply with discovery.

The Plaintiffs’ motion is defective because it lacks a notice. CRC rules 3.1110 and 3.1112 require motions to include a notice that identifies the order sought and the grounds for issuing the order. California law holds that, as a general rule, the trial court may consider only the grounds stated in the notice of motion. Luri v. Greenwald (2003) 107 Cal. App. 4th 1119, 1125.

The Plaintiffs’ motion for terminating sanctions does not include any notice. Since there is no notice, the Plaintiffs did not comply with CRC rules 3.1110 and 3.1112 and, under California law, the Court cannot consider the motion. This is the first ground for denying the motion.

Further, the Plaintiffs failed to comply with the specific procedural requirements for seeking discovery sanctions. Under CCP section 2023.040, the notice of motion for a motion that requests discovery sanctions must identify every person against whom the sanctions are sought and must specify the type of sanctions. As noted above, the Plaintiffs did not file a proper notice of motion. Further, the caption for the first page does not specify the persons against whom the sanctions are sought. The Plaintiffs’ failure to comply with CCP section 2023.040 is the second ground to deny the motion.

Finally, the Plaintiffs failed to demonstrate that the Defendants have engaged in the misuse of discovery sufficient to justify the imposition of terminating sanctions. Under California law, a discovery order cannot go further than is necessary to accomplish the purpose of discovery. Newland v. Superior Court (1995) 40 Cal. App. 4th 608, 613. The purpose of discovery sanctions is to prevent abuse of the discovery process and correct the problem presented. McGinty v. Superior Court (1994) 26 Cal. App. 4th 204, 210. In addition, an order imposing terminating sanctions must be preceded by the disobedience of an order compelling a party to do that which the party should have done in the first instance. Kravitz v. Superior Court (2001) 91 Cal. App. 4th 1015, 1021. Accordingly, there are grounds for terminating sanctions when a party fails to comply with discovery and fails to comply with Court orders regarding discovery.

The Plaintiffs argue that the Defendants have failed to comply with a discovery order issued on September 20, 2012. At that hearing, the Court issued the following discovery orders:

1) the Defendants were order to serve further responses to Plaintiffs’ form interrogatories and special interrogatories without objections within 10 days;
2) the Defendants were orders 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.

In their motion, the Plaintiffs did not provide any evidence to demonstrate that the Defendants failed to comply with this order.
The Plaintiffs filed a “separate statement” in which they indicate that the Defendants did not produce certain documents, e.g., a driver’s license. This offers no grounds to find that the Defendants failed to comply with the Court’s September 20, 2012 order because the order did not require the Defendants to produce any documents. Instead, if the Defendants failed to produce responsive documents, then the Plaintiffs should have filed a motion under CCP section 2031.320 and sought an order to compel the Defendants to comply with their responses to the requests for production.

Further, the opposition papers demonstrate that the Defendants complied with the Court’s order last year. The Defendants provide facts in the declaration of their counsel, Neil Evans, to demonstrate that they complied with the Court’s order in the following manner:

1) the Defendants served verified, supplemental responses without objections to the form interrogatories, to the special interrogatories, and to the requests for production on May 14, 2013 (see copies of responses in opposition, exhibit A); and
2) the Defendants produced about 700 pages in compliance with the responses to the requests for production on May 15, 2013.

A review of the Defendants’ supplemental responses reveals that they include factual information and that they comply with the procedural requirements for drafting responses.

This evidence indicates 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.

Further, 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. The Defendants’ attorney, Neil Evans, provides facts in his declaration to demonstrate that the Plaintiffs have never attempted to meet and confer about any defects in these supplemental responses. A review of the Court file reveals that the Plaintiffs filed no timely motion to compel further responses.

This analysis of the moving papers and the opposition papers reveals that the discovery problem has been resolved because the Defendants have complied with the Court’s discovery order. An order imposing terminating sanctions would go further than is necessary because there is no actual discovery problem.

The Plaintiffs also request an award of monetary sanctions of $3,200. The Plaintiffs have identified no grounds to find that the Defendants misused discovery. Instead, the Defendants served supplemental responses and produced documents.
On the other hand, there are grounds to find that the Plaintiffs have misused discovery. The Plaintiffs failed to comply with the requirements of the discovery code and made a good faith attempt to resolve informally any dispute that they had with the Defendants supplemental responses. Further, the Plaintiffs filed a motion for terminating sanctions that lacks merit because there is no evidence that the Defendants are willfully refusing to comply with discovery.
Accordingly, the Court denies the Plaintiffs’ request for monetary sanctions because there are no grounds to find that the Defendants have misused discovery.

Finally, the opposition papers include a request for monetary sanctions. However, the Defendants identified no legal authority in support of the request for monetary sanctions. California law holds that trial courts may not award attorney fees as a sanction for misconduct unless they do so pursuant to statutory authority. Olmstead v. Arthur J. Gallagher & Co. (2004) 32 Cal. 4th 804, 809. Since the Defendants did not identify any legal authority for an award of monetary sanctions, the Court denies the request.

Therefore, the Court denies the Plaintiffs’ motion in its entirety for the following reasons: