SAM DERAKHSHAN VS AVA AZIMI

Tentative Rulings

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Case Number: 19STLC07013 Hearing Date: August 10, 2021 Dept: 25

PROCEEDINGS: MOTION\r\nFOR RECONSIDERATION

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MOVING PARTY: Plaintiff\r\nPars Accounting, Inc.

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RESP. PARTY: None

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MOTION FOR RECONSIDERATION

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(CCP § 1008)

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TENTATIVE RULING:

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Plaintiff Pars Accounting, Inc.’s\r\nMotion for Reconsideration is GRANTED. After reconsidering the Court’s March 3,\r\n2021 Minute Order, discovery and law and motion practice remains closed except\r\nfor matters related to Defendant’s deposition in accordance with the January\r\n25, 2021 Stipulation and Order.

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SERVICE: \r\n

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[X]\r\nProof of Service Timely Filed (CRC, rule 3.1300) OK

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[X]\r\nCorrect Address (CCP §§ 1013, 1013a) OK

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[X]\r\n16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

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OPPOSITION: None filed as of August\r\n6, 2021 [ ] Late [X]\r\nNone

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REPLY: None filed as\r\nof August 6, 2021 [ ] Late [X] None

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ANALYSIS:

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I. \r\nBackground

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On July 30, 2019, Sam Derakhshan filed an action against\r\nDefendant Ava Azimi aka Asma Azimi (“Defendant”). A First Amended Complaint\r\n(the “FAC”) was filed on October 31, 2019 substituting Sam Derakhshan for\r\nPlaintiff Pars Accounting, Inc. (“Plaintiff”). Defendant filed a general\r\ndenial, in pro per, on December 18, 2019.

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A non-jury trial was originally scheduled for January 26,\r\n2021. On January 25, 2021, the parties filed a Stipulation explaining that\r\nDefendant was continuously exposed to COVID-19 due to her work with the\r\ngovernment. (1/25/21 Stipulation.) As a result, the parties agreed (1) to\r\ncontinue the trial to April 27, 2021, (2) that discovery remained closed except\r\nthat Defendant agreed to appear for a remote deposition within thirty days of\r\nthe date the Stipulation was granted, and (3) that law and motion practice\r\nremained closed and cutoff except as it related to Defendant’s deposition. (Id.)\r\nThe Court signed an order pursuant to the Stipulation that same day. (1/25/21\r\nOrder.)

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On February 16, 2021, Defendant filed a notice of\r\nsubstitution of attorney indicating she was now being represented by attorney\r\nStanley D. Bowman.

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Defendant filed a motion for leave to file a\r\ncross-complaint on February 26, 2021, which was denied on July 22, 2021. (7/22/21\r\nMinute Order.)

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Defendant also filed an ex parte application for an order\r\nshortening time to hear her motion for leave or to continue the trial on March\r\n1, 2021. Having reviewed the ex parte application in chambers, the Court\r\npartially granted relief and continued the trial to January 19, 2022. (3/3/21\r\nMinute Order.) The Court also stated that all motion and discovery dates would\r\nbe governed by the new trial date. (Id.)

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Plaintiff filed the instant Motion for Reconsideration of\r\nOrder (the “Motion”) on March 16, 2021. No opposition was filed.

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II. \r\nLegal\r\nStandard

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Code of Civil Procedure section 1008\r\nprovides, in pertinent part:

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“(a)\r\nWhen an application for an order has been made to a judge, or to a court, and\r\nrefused in whole or in part, or granted, or granted conditionally, or on terms,\r\nany party affected by the order may, within\r\n10 days after service upon the party of written notice of entry of the\r\norder and based upon new or different facts, circumstances, or law, make an application\r\nto the same judge or court that made the order, to reconsider the matter and\r\nmodify, amend, or revoke the prior order. The party making the application\r\nshall state by affidavit what application was made before, when and to what\r\njudge, what order or decisions were made, and what new or different facts,\r\ncircumstances, or law are claimed to be shown.

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(b) A party who\r\noriginally made an application for an order which was refused in whole or in\r\npart, or granted conditionally or on terms, may make a subsequent application\r\nfor the same order upon new or different facts, circumstances, or law, in which\r\ncase it shall be shown by affidavit what application was made before, when and\r\nto what judge, what order or decisions were made, and what new or different\r\nfacts circumstances, or law are claimed to be shown. For a failure to comply\r\nwith this subdivision, any order made on a subsequent application may be revoked\r\nor set aside on an ex parte motion.

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…

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(e) This\r\nsection specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and\r\nrenewals of previous motions, and applies to all applications to reconsider any order of a judge or court,\r\nor for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim\r\nor final. No application to reconsider\r\nany order or for the renewal of a previous motion may be considered by any\r\njudge or court unless made according to\r\nthis section.”

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(Code\r\nCiv. Proc. § 1008, subds. (a), (b), (e).)

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III. \r\nDiscussion\r\n

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Plaintiff’s Motion is timely and includes the required\r\naffidavit identifying the relevant order and explaining the circumstances that\r\nwarrant reconsideration. (Mot., Leff Decl., ¶¶ 7-15.) Plaintiff urges the\r\nCourt to reconsider the March 3, 2021 Order making all motion and discovery\r\ndates governed by the new January 19, 2022 trial date. (Mot., pp. 4-.5) As\r\nnoted above, the parties had previously executed a Stipulation agreeing that\r\nlaw and motion practice remained closed and cut-off except as it related to\r\nDefendant’s deposition and the Court signed an order pursuant to that\r\nStipulation. (1/25/21 Stipulation; 1/25/21 Order.)

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When the ex parte application to shorten time or continue\r\ntrial came up for hearing, the Hon. James E. Blancarte appears to have\r\ninadvertently not considered the January 25 Stipulation and Order maintaining\r\nlaw and motion and discovery dates closed except for matters related to\r\nDefendant’s deposition when he issued his ruling. As Plaintiff points out,\r\nDefendant did not request that motion and discovery dates be reopened in her ex\r\nparte application. (3/1/21 Ex Parte Application.)

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“New circumstances” for purposes of a motion for\r\nreconsideration include a court’s failure to consider documents previously\r\nfiled in issuing a ruling. (See Johnston v. Corrigan (2005) 127\r\nCal.App.4th 553, 556-57.)

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Thus, Plaintiff’s Motion is GRANTED. After reconsidering\r\nthe Court’s March 3, 2021 Order, discovery and law and motion practice remains\r\nclosed except for matters related to Defendant’s deposition in accordance with\r\nthe January 25, 2021 Stipulation and Order. \r\n

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IV. \r\nConclusion\r\n& Order

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For the foregoing reasons, Plaintiff\r\nPars Accounting, Inc.’s Motion for Reconsideration is GRANTED. After\r\nreconsidering the Court’s March 3, 2021 Minute Order, discovery and law and\r\nmotion practice remains closed except for matters related to Defendant’s\r\ndeposition in accordance with the January 25, 2021 Stipulation and Order.

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Moving party is ordered to give\r\nnotice.

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Case Number: 19STLC07013    Hearing Date: August 26, 2020    Dept: 25

HEARING DATE:   Wed., August 26, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME:  Derakshian v. Azimi COMPL. FILED: 07-30-19

CASE NUMBER: 19STLC07013 DISC. C/O: 01-11-21

NOTICE:   OK MOTION C/O: 12-27-20

PROCEEDINGS:     MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES, SET ONE, AND REQUEST FOR SANCTIONS

MOVING PARTY:   Plaintiff Pars Accounting, Inc.

RESP. PARTY: None

MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES; REQUEST FOR SANCTIONS  

(CCP § 2030.290)

TENTATIVE RULING:

Plaintiff Pars Accounting, Inc.’s Motion to Compel Responses to Form Interrogatories, Set One, is GRANTED. Defendant must provide verified responses without objections to the discovery within thirty (30) days of notice of this order. Plaintiff’s request for sanctions is also GRANTED in the amount of $435.00 to be paid within thirty (30) days of notice of this order.

SERVICE: 

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: None filed as of August 24, 2020 [   ] Late [X] None

REPLY: None filed as of August 24, 2020 [   ] Late [X] None

ANALYSIS:

1. Background

On July 30, 2019, Sam Derakhshan filed an action against Defendant Ava Azimi aka Asma Azimi (“Defendant”) for breach of contract and common counts. On October 31, 2019, a First Amended Complaint (“FAC”) was filed, substituting Plaintiff Pars Accounting, Inc. (“Plaintiff”) for Sam Derakshian. On December 18, 2019, Defendant filed an Answer, in pro per.

On March 12, 2020, Plaintiff filed the instant Motion to Compel Responses to Form Interrogatories, Set One, and Request for Sanctions (the “Motion”). To date, no opposition has been filed.

1. Legal Standard & Discussion

A. Form Interrogatories

 

A party must respond to interrogatories within 30 days after service. (Code Civ. Proc., § 2030.260, subd. (a).) If a party to whom interrogatories are directed does not provide timely responses, the requesting party may move for an order compelling responses to the discovery. (Code Civ. Proc., § 2030.290, subd. (b).) The party also waives the right to make any objections, including one based on privilege or work-product protection. (Code Civ. Proc., § 2030.290, subd. (a).) There is no time limit for a motion to compel responses to interrogatories other than the cut-off on hearing discovery motions 15 days before trial. (Code Civ. Proc., § 2024.020, subd. (a); Code Civ. Proc., 2030.290.) No meet and confer efforts are required before filing a motion to compel responses to the discovery. (Code Civ. Proc., § 2030.290; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411.) 

Here, Plaintiff served Defendant with Form Interrogatories, Set One, on January 2, 2020 by regular mail. (Mot., Leff Decl., ¶ 2.) Although not procedurally required, on February 10, 2020, Plaintiff’s counsel sent a letter to Defendant regarding the lack of discovery responses and granted an extension until February 20, 2020 to provide them without objections. (Id. at ¶  4.) To date, Defendant has not provided any responses to the interrogatories. (Id. at ¶ 5.) Thus, Plaintiff is entitled to an order compelling Defendant to provide verified responses to Form Interrogatories, Set One, without objections. (Code Civ. Proc., § 2030.290.)

B. Sanctions

Code of Civil Procedure section 2023.030, subdivision (a) provides, in pertinent part, that the court may impose a monetary sanction on a party engaging in the misuse of the discovery process to pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. A misuse of the discovery process includes failing to respond or to submit to an authorized method of discovery. (Code Civ. Proc., § 2023.010, subd. (d).)

The Court finds Defendant’s failure to respond to Plaintiff’s discovery request a misuse of the discovery process.

Plaintiff’s counsel requests a total of $1,747.00, which consists of 4.5 hours of attorney time billed at $375.00 per hour and one filing fee of $60.00. (Mot., Song Decl., ¶¶ 2-5.) However, the amount sought is excessive given the simplicity of this Motion and the lack of opposition and reply. The Court finds $435.00, based on one hour of attorney time and one filing fee, to be reasonable. Defendant is ordered to pay sanctions within thirty (30) days of notice of this order.

1. Conclusion & Order

For the foregoing reasons, Plaintiff Pars Accounting, Inc.’s Motion to Compel Responses to Form Interrogatories, Set One, is GRANTED. Defendant must provide verified responses without objections to the discovery within thirty (30) days of notice of this order. Plaintiff’s request for sanctions is also GRANTED in the amount of $435.00 to be paid within thirty (30) days of notice of this order.

Moving party is ordered to give notice.