Case Number: KC068891 Hearing Date: August 22, 2017 Dept: O

Muralles, et al. v. Dan Mikolasko Construction, Inc., et al. (KC068891)

1. Plaintiffs X. and C. Muralles’s MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT

Respondent: NO OPPOSITION

2. Plaintiffs X. and C. Muralles’s MOTION TO ENFORCE COURT ORDER AND REQUEST FOR SANCTIONS

Respondent: Defendant Dan Mikolasko Construnction, Inc.

TENTATIVE RULING

1. Motion for Leave to file FAC

Plaintiffs X. and C. Muralles’s motion for leave to file first amended complaint is GRANTED. The FAC is deemed filed this date.

Plaintiffs X. and C. Muralles move for leave to file a FAC per CCP 473 based upon recent discovery of evidence supporting alter ego allegations against Dan Mikolasko. There is no opposition. Motion is GRANTED.

2. Sanctions

Plaintiffs X. and C. Muralles’s motion to enforce court order and request for sanctions is DENIED in part and GRANTED in part. Sanctions are imposed against Defendant DMC in the sum of $5,000.00 payable within 30 days.

Plaintiffs X. and C. Muralles move for an order that Dan Mikolasko Construction, Inc. (“DMC”) pay $2,060 in sanctions; and for an order of issue and monetary sanctions based on its failure to obey the court’s order per CCP 2032.010 and 2023.030.

(a) The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct… (b) The court may impose an issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses. (c) The court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence. (d) The court may impose a terminating sanction. (CCP 2023.030.)

On 5/30/17, this court ordered DMC to serve further responses to discovery within 10 days of the order and pay sanctions in the sum of $2,060 within 30 days. DMC refused to serve further responses or pay sanctions.

In opposition, DMC contends that its prior counsel, the Law Offices of Gary A. Bemis, did not keep it apprised of the developments in the litigation. On 7/12/17, DMC retained new counsel, the Law Offices of Marc Grossman. Prior to 7/12/17, DMC was unaware of the Court’s order of the underlying discovery issues. Upon being apprised of these issues, DMC arranged to provide the information to supplement the prior discovery responses. (Mikolasko Decl., Pars. 2-7.)

Given Mikolasko’s declaration and the fact that the prior discovery motion was unopposed, issue sanctions are not appropriate in this instance because it appears that DMC’s failure to respond was not willful.

However, it has been over a month since new counsel has substituted in. DMC has had ample time to serve supplemental responses. This court’s prior order only gave DMC 10 days to serve supplemental responses. Thus, the court finds that further monetary sanctions are appropriate and may accomplish the object of discovery.

Accordingly, motion for issue sanctions is DENIED. Motion for further monetary sanctions in the sum of $5,000 is GRANTED. Sanctions are imposed against Defendant DMC in the sum of $5,000.00 payable within 30 days.