Case Number: BC653531 Hearing Date: June 18, 2018 Dept: 32

laura shapiro, et. al.

Plaintiffs,

v.

morad ben neman, et. al.

Defendant.

Case No.: BC653531

Hearing Date: June 18, 2018

[TENTATIVE] order RE:

defendants’ motion for terminating sanctions

BACKGROUND

This action is brought by seventy-five individual Plaintiffs against eighteen Defendants related to a property located on East Pico Boulevard in Los Angeles. Plaintiffs allege claims arising out of the warranty of habitability, negligence, and various statutory violations.

REQUEST FOR JUDICIAL NOTICE

The Defendants’ and Plaintiffs’ Requests for Judicial Notice (“RJN”) are GRANTED. (Cal. Evid. Code §452, 453.)

DISCUSSION

It is a misuse of the discovery process to fail “to respond or to submit to an authorized method of discovery,” (CCP § 2023.010(d)) or to disobey “a court order to provide discovery.” (CCP § 2023.010(g).) Under CCP § 2023.030, courts have the authority to issue monetary sanctions, evidentiary sanctions, or terminating sanctions after giving parties proper notice and the opportunity to be heard.

In determining whether sanctions should be imposed, courts consider the totality of the circumstances, including the “conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.” (Lang v. Hochman (2000) 77 Cal. App. 4th 1225, 1246.) “The penalty should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.” (Wilson v. Jefferson (1985) 163 Cal. App. 3d 952, 959.)

Defendants move for terminating sanctions, or evidentiary sanctions in the alternative, on the grounds that Plaintiffs failed to produce responses in compliance with the Court’s September 29, 2017 and November 29, 2017 orders for responses to Form Interrogatories, Set One. (Klein Decl. ¶2.) Defendants propounded the Form Interrogatories on March 23, 2017. (Klein Decl. ¶2.) On April 21, 2017 the Court ordered Plaintiffs to provide responses to the discovery requests on or before May 20, 2017. (Klein Decl. ¶4.) Plaintiffs did not do so. (Klein Decl. ¶5.) On June 9, 2017, thirty-seven of the seventy-five Plaintiffs served unverified responses to the FIs. (Klein Decl. ¶6.) On July 5, 2017, the remaining Plaintiffs served incomplete responses to the FIs. (Klein Decl. ¶7.) Defendants sent four meet and confer letters to Plaintiffs’ counsel to identify the errors with Plaintiffs’ responses. (Klein Decl. Exh. 4.) Defendants then sought Court intervention and filed three consolidated motions to compel further responses which were granted on September 29, 2017. ((Klein Decl. ¶11.) The Plaintiffs were ordered to provide further Code compliant responses within 60 days. (Klein Decl Exh. 6.) On November 29, 2017, Plaintiffs then sought an additional sixty days to provide their responses, to which the Court granted two more weeks. (Klein Decl. ¶12.) Supplemental responses were due on December 15, 2017. (Klein Decl ¶12.) Defendants contend that prior to filing this motion on May 24, 2018 not a single response in compliance with the Court’s Order has been served. (Klein Decl. ¶12.) Defendants contend this is the eleventh discovery motion filed in this Action, the Form Interrogatories were propounded over one year ago, and still no appropriate responses have been provided, notwithstanding this Court’s prior Orders and monetary sanctions. (Klein Decl. ¶¶2, 12.)

In opposition, Plaintiffs’ counsel contends that Plaintiffs prepared and served verified response to a bulk of the interrogatories. However, Plaintiffs’ counsel fails to provide evidence of supplemental responses served after the Court’s orders and attaches only examples of responses served in May 2017, prior to the Court’s orders compelling further responses. (Martz Decl. Exh. 1.) In opposition, Plaintiffs contend that terminating sanctions would be unduly harsh without providing an explanation for the fact that this discovery was served more than one year ago, they received numerous extensions of time to respond, the discovery in question was a set of Judicial Council approved form interrogatories, the discovery is material to their case, and the existence of Court orders compelling discovery. (See Deyo v. Kilbourne (21978) 84 Cal.App.3d 771, 796.)

For the foregoing reasons, Defendants’ motion for terminating sanctions is GRANTED.

Defendants request monetary sanctions and evidentiary sanctions is DENIED.