This case was last updated from Los Angeles County Superior Courts on 06/09/2019 at 00:08:30 (UTC).

KISEAN ANDERSON VS PENTHOUSE NIGHTCLUB & DAY CLUB

Case Summary

On 07/01/2016 KISEAN ANDERSON filed a Personal Injury - Other Personal Injury lawsuit against PENTHOUSE NIGHTCLUB DAY CLUB. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is CHRISTOPHER K. LUI. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5899

  • Filing Date:

    07/01/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

CHRISTOPHER K. LUI

 

Party Details

Plaintiff and Petitioner

ANDERSON KISEAN

Defendants and Respondents

DOES 1 THROUGH 100

PENTHOUSE NIGHTCLUB & DAY CLUB

AVELLANEDA ARACELLI DOE 4

GOLLER NATHAN DOE 7

AEGIS SECURITY & INVESTIGATIONS INC. DOE2

SKWS ENTERPRISES DOE 3

NATHAN GOLLER REVOCABLE TRUST DOE 6

ATF PRIVATE SECURITY

Defendant and Cross Plaintiff

SKWS ENTERPRISES DOE 3

Defendant and Cross Defendant

ATF PRIVATE SECURITY

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

LAW OFFICES OF MICHELLE IARUSSO THE

DAGHER NICHOLAS F

Defendant Attorneys

DORENFELD DAVID K

HOPSTONE JOSHUA SAMSON

 

Court Documents

Motion to Compel Discovery

4/25/2019: Motion to Compel Discovery

Cross-Complaint

5/3/2019: Cross-Complaint

Summons

5/3/2019: Summons

Minute Order

5/16/2019: Minute Order

Motion to Compel Discovery

5/17/2019: Motion to Compel Discovery

PLAINTIFF'S EX PARTE APPLICATION TO SET ASIDE DISMISSAL

4/6/2018: PLAINTIFF'S EX PARTE APPLICATION TO SET ASIDE DISMISSAL

Minute Order

4/6/2018: Minute Order

AMENDMENT TO COMPLAINT

4/10/2018: AMENDMENT TO COMPLAINT

AMENDMENT TO COMPLAINT

4/10/2018: AMENDMENT TO COMPLAINT

SUMMONS

6/19/2018: SUMMONS

SUMMONS

8/9/2018: SUMMONS

Ex Parte Application

12/10/2018: Ex Parte Application

Order

12/10/2018: Order

Minute Order

12/10/2018: Minute Order

Reply

1/18/2019: Reply

Substitution of Attorney

3/11/2019: Substitution of Attorney

PROOF OF SERVICE SUMMONS

8/5/2016: PROOF OF SERVICE SUMMONS

AMENDMENT TO COMPLAINT

9/21/2017: AMENDMENT TO COMPLAINT

45 More Documents Available

 

Docket Entries

  • 05/29/2019
  • at 08:30 AM in Department 4A, Christopher K. Lui, Presiding; Jury Trial - Not Held - Continued - Party's Motion

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  • 05/22/2019
  • at 08:30 AM in Department 4A, Christopher K. Lui, Presiding; Hearing on Ex Parte Application (to continue motion to compel hearing) - Held - Motion Granted

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  • 05/22/2019
  • at 1:30 PM in Department 4A, Christopher K. Lui, Presiding; Hearing on Motion to Compel (Motion to Compel Third Party Iarusso & Dagher LLP to Comply with Deposition Subpoena for Production of Business Records) - Not Held - Continued - Ex Parte Motion

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  • 05/22/2019
  • Minute Order ( (Hearing on Motion to Compel Motion to Compel Third Party Iaru...)); Filed by Clerk

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  • 05/22/2019
  • Ex Parte Application ( PLAINTIFF?S EX PARTE APPLICATION TO CONTINUE MOTION TO COMPEL HEARING; DECLARATION OF MICHELLE IARUSSO); Filed by Kisean Anderson (Plaintiff)

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  • 05/22/2019
  • Notice (Plaintiff's notice of continued hearing on motion to compel); Filed by Kisean Anderson (Plaintiff)

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  • 05/17/2019
  • Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion; Filed by SKWS Enterprises (Doe 3) (Defendant)

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  • 05/17/2019
  • Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion; Filed by SKWS Enterprises (Doe 3) (Defendant)

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  • 05/17/2019
  • Notice (Notice of Rescheduled Hearing); Filed by Aegis Security & Investigations Inc. Doe2 (Defendant)

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  • 05/17/2019
  • Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion (Plaintiff's Responses to Special Interrogatories, Set One; Sanctions); Filed by SKWS Enterprises (Doe 3) (Defendant)

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76 More Docket Entries
  • 09/21/2017
  • Amendment to Complaint; Filed by Kisean Anderson (Plaintiff)

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  • 10/14/2016
  • Notice of Change of Address or Other Contact Information; Filed by Kisean Anderson (Plaintiff)

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  • 10/14/2016
  • Notice of Change of Address or Other Contact Information

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  • 08/29/2016
  • Answer; Filed by Defendant/Respondent

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  • 08/29/2016
  • Answer

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  • 08/05/2016
  • Proof-Service/Summons; Filed by Kisean Anderson (Plaintiff)

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  • 08/05/2016
  • PROOF OF SERVICE SUMMONS

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  • 07/01/2016
  • SUMMONS

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  • 07/01/2016
  • Complaint; Filed by Kisean Anderson (Plaintiff)

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  • 07/01/2016
  • COMPLAINT FOR DAMAGES 1. ASSAULT; ETC

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Tentative Rulings

Case Number: BC625899    Hearing Date: December 03, 2019    Dept: 4A

Motions for Terminating Sanctions

Having considered the moving papers, the Court rules as follows.

BACKGROUND

On July 1, 2016, Plaintiff Kisean Anderson (“Plaintiff”) filed a complaint against Defendant Penthouse Nightclub & Day Club alleging assault, battery, and negligent hiring, supervision, and retention for an altercation that occurred on June 12, 2016.

On April 10, 2018, Plaintiff amended his complaint to name Defendant Aegis Security & Investigations Inc. as Doe 2 and Defendant SKWS Enterprises, Inc. as Doe 3.

On August 9, 2018, Defendant/Cross-Complainant Aegis Security & Investigations Inc. filed a cross-complaint against Defendant/Cross-Defendant SKWS Enterprises, Inc. for indemnity, apportionment, contribution, and declaratory relief.

On January 11, 2019, Defendant/Cross-Complainant Aegis Security & Investigations Inc. was dismissed as a defendant with prejudice.

On May 3, 2019, Defendant/Cross-Defendant/Cross-Complainant SKWS Enterprises, Inc. filed a cross-complaint against Cross-Defendant ATF Private Security, Inc. seeking equitable indemnity, apportionment, comparative negligence, and declaratory relief.

On July 17, 2019, Plaintiff filed an amendment to his complaint naming Cross-Defendant/Defendant Crystal Tarin dba ATF Private Security (erroneously sued as ATF Private Security, Inc.)

On October 8, 2019, Defendant/Cross-Defendant/Cross-Complainant SKWS Enterprises, Inc. submitted three motions for terminating sanctions against Plaintiff pursuant to California Code of Civil Procedure section 2023.030.

Trial is set for February 21, 2020.

PARTYS REQUEST

Defendant/Cross-Defendant/Cross-Complainant SKWS Enterprises, Inc. (“Moving Party”) asks the Court to impose terminating sanctions against Plaintiff for failing to abide by an August 23, 2019 Court order.

LEGAL STANDARD

California Code of Civil Procedure section 2023.030 provides that, “[t]o the extent authorized by the chapter governing any particular discovery method . . . , the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose . . . [monetary, issue, evidence, or terminating] sanctions against anyone engaging in conduct that is a misuse of the discovery process . . . .” California Code of Civil Procedure section 2023.010 provides that “[m]issues of the discovery process include, but are not limited to, the following: . . . (g) Disobeying a court order to provide discovery. . . .

“Discovery sanctions must be tailored in order to remedy the offending party’s discovery abuse, should not give the aggrieved party more than what it is entitled to, and should not be used to punish the offending party.”  (Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1217.)  “Although the court has discretion in choosing a sanction, this discretion must be exercised in a manner consistent with the basic purposes of such sanctions, e.g., to compel disclosure of discoverable information.”  (Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1193 (citation omitted).)  “Furthermore, the sanction chosen should not provide a windfall to the other party, by putting the prevailing party in a better position than if he or she had obtained the discovery sought and it had been favorable.”  (Ibid. (citations omitted).)

A court may not issue a terminating sanction for failure to pay a monetary discovery sanction.  (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 610, 615.)  Rather, a monetary sanction order is enforceable as a money judgment under the Enforcement of Judgments Law, California Code of Civil Procedure sections 680.010, et seq. Id. at p. 615.)

DISCUSSION

On August 23, 2019, the Court ordered Plaintiff to serve verified responses without objections to Form Interrogatories, Special Interrogatories, and Request for Production (All Set One) on Moving Party within 30 days of the ruling.  (All Three Declarations of Michael D. Margolin (“Margolin Decl.”), ¶¶ 5-7, Exh. A.)  Also on August 23, 2019, the Court ordered Plaintiff and Plaintiff’s counsel to pay Moving Party $1,255 within 30 days of the ruling.  (Ibid.)  Moving Party had not received the outstanding responses or sanctions as of the signing of Michael D. Margolin’s declarations on October 8, 2019.  (Margolin Decl., ¶¶10.)

The Court initially notes that Plaintiff’s failure to pay Court-ordered sanctions within 30 days of the August 23, 2019 ruling cannot be grounds for granting these motions.  (See Newland, supra, 40 Cal.App.4th at pp. 610, 615.)

Taking stock of the entire course of Plaintiff’s conduct in this case, the Court finds terminating sanctions are improper here.  Moving Party filed these motions only approximately two weeks after Plaintiff’s deadline to comply with the August 23, 2019 order.  Further, there is no evidence showing Moving Party reminded Plaintiff of Plaintiff’s obligations after the deadline passed or sought any informal means of enforcing compliance with the Court’s order.  Granting the motions would provide a windfall to Moving Party.

In addition, since the time Moving Party filed its motions for terminating sanctions, the Court has ruled on its related motions to compel discovery and found, inter alia, that Plaintiff served code-compliant discovery responses to the discovery that was at issue in those motions and that, because of mail theft experienced by Plaintiff’s counsel and defense counsel’s quick trigger on moving to compel, no monetary sanctions should be imposed on Plaintiff and/or his attorney.  The record does not disclose whether the discovery responses ordered on August 23, 2019 were also among those that were served on the eve of the November 26, 2019 hearing. 

On the other side of the coin, the Court issued an order on July 23, 2019 directing Plaintiff’s counsel to produce documents reflecting any communications counsel  had with Special Bailey or Korey Byrd from June 12, 2016 to the present.  On October 30, 2019, the Court denied the motion of Defendant/Cross-complainant Aegos Security and Investigations, Inc., seeking to hold Plaintiff’s counsel in contempt for its failure to comply with the July 23, 2019 order but issued an order to show cause why daily monetary sanctions should not be imposed on Plaintiff’s counsel to compel their compliance.  There being no showing by Plaintiff’s counsel of compliance with the Court’s order, on December 2, 2019, the Court directed Plaintiff’s counsel to pay $150 per day for every day of non-compliance with the Court’s July 23, 2019 order after December 2, 2019.  Thus, December 3, 2019 shall be the first day when these coercive sanctions must be paid, if Plaintiff’s counsel fails to comply with the Court’s order. 

The persistent resistance to a valid subpoena arises from the non-compliance of Plaintiff’s counsel, not Plaintiff.  The underlying documents sought test the representations of Plaintiff’s counsel in her attempt to justify the naming of Aegos Security as a defendant in this case and have little to no relation to any pattern of discovery misconduct by Plaintiff.  Accordingly, the Court finds that the resistance of Plaintiff’s counsel to Aegos Security’s subpoena and the Court orders enforcing it should not be held against Plaintiff.   

An order granting terminating sanctions is a drastic remedy that should be imposed only where a party has engaged in an egregious pattern of discovery abuse or other misconduct.  Plaintiff’s conduct in this case, while non-compliant with an outstanding order and late in its execution, does not rise (or descend) to the level of misconduct justifying terminating sanctions.  The Court declines to impute the misconduct of Plaintiff’s counsel in failing to respond to Aegos Security’s subpoena to Plaintiff himself.  Based on these findings, the Court denies terminating sanctions and concludes that lesser sanctions are available as an interim step to compel Plaintiff's compliance with his discovery obligations. 

Based on the foregoing, the Court orders Plaintiff to comply with the August 23, 2019, Order within twenty (20) days, specifically by:  (1) providing verified responses without objections to Moving Party’s Form Interrogatories, Special Interrogatories, and Request for Production (All Set One); and (2) paying $1,255 in sanctions.

the imposition of additional sanctions would be unjust as Plaintiff has not been given notice of a potential imposition of additional sanctions.

The motion is DENIED.

Moving Party is ordered to give notice of this ruling.

Case Number: BC625899    Hearing Date: November 26, 2019    Dept: 4A

Motion to Compel Responses to Form Interrogatories, Special Interrogatories, Request for Production (All Set One); Motion to Deem Matters in Request for Admissions (Set One) as True

Having considered the moving and opposing papers, the Court rules as follows.

BACKGROUND

On July 1, 2016, Plaintiff Kisean Anderson (“Plaintiff”) filed a complaint against Defendant Penthouse Nightclub & Day Club alleging assault, battery, and negligent hiring, supervision, and retention for an altercation that occurred on June 12, 2016.

On April 10, 2018, Plaintiff amended his complaint to name Defendant Aegis Security & Investigations Inc. as Doe 2 and Defendant SKWS Enterprises, Inc. as Doe 3.

On August 9, 2018, Defendant/Cross-Complainant Aegis Security & Investigations Inc. filed a cross-complaint against Defendant/Cross-Defendant SKWS Enterprises, Inc. for indemnity, apportionment, contribution, and declaratory relief.

On January 11, 2019, Defendant/Cross-Complainant Aegis Security & Investigations Inc. was dismissed as a defendant with prejudice.

On May 3, 2019, Defendant/Cross-Defendant/Cross-Complainant SKWS Enterprises, Inc. filed a cross-complaint against Cross-Defendant ATF Private Security, Inc. seeking equitable indemnity, apportionment, comparative negligence, and declaratory relief.

On July 17, 2019, Plaintiff filed an amendment to his complaint naming Cross-Defendant/Defendant Crystal Tarin dba ATF Private Security (erroneously sued as ATF Private Security, Inc.)

On October 23, 2019, Cross-Defendant/Defendant Crystal Tarin filed motions to compel Plaintiff to provide verified responses without objections to Form Interrogatories, Special Interrogatories, and Request for Production (All Set One) and a motion to deem the matters in Request for Admissions (Set One) as true against Plaintiff.

Trial is set for June 9, 2020.

PARTY’S REQUESTS

Cross-Defendant/Defendant Crystal Tarin (“Moving Party”) asks the Court to compel Plaintiff to provide verified responses without objections to Form Interrogatories, Special Interrogatories, and Request for Production (All Set One) due to Plaintiff’s failure to provide timely verified responses.

Moving Party also asks the Court to deem the matters within Request for Admissions (Set One) as true against Plaintiff due to Plaintiff’s failure to provide timely verified responses.

Moving Party further asks the Court to impose monetary sanctions of $2,812.50 against Plaintiff and his counsel of record for their abuse of the discovery process.

LEGAL STANDARD

If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. (Code Civ. Proc. § 2030.290, subd. (b).) The statute contains no time limit for a motion to compel where no responses have been served. All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. (See Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905-906.)

Where there has been no timely response to a demand for the production of documents, the demanding party may seek an order compelling a response. (Code Civ. Proc. § 2031.300, subd. (b).) Failure to timely respond waives all objections, including privilege and work product. (Code Civ. Proc. § 2031.300, subd. (a).)  Thus, unless the party to whom the demand was directed obtains relief from waiver, he or she cannot raise objections to the documents demanded. There is no deadline for a motion to compel responses. Likewise, for failure to respond, the moving party need not attempt to resolve the matter outside court before filing the motion.

Pursuant to Code of Civil Procedure section 2033.280, subdivision (b), a “party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with section 2023.010).”  The court “shall” grant the motion to deem requests for admission admitted “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.”  (Code Civ. Proc. § 2033.280, subd. (c).)

Under California Code of Civil Procedure section 2023.030, subd. (a), “[t]he 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. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” Failing to respond or to submit to an authorized method of discovery is a misuse of the discovery process.  (Code of Civ. Proc. § 2023.010.)

Sanctions are mandatory in connection with a motion to deem matters specified in a request for admissions as true and motions to compel responses to interrogatories and requests for production of documents against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel unless the court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  (Code Civ. Proc. §§ 2030.290, subd. (c), 2031.300, subd. (c), 2033.280, subd. (c).)

DISCUSSION

Procedural Ruling

Plaintiff filed his oppositions on November 14, 2019.  The oppositions were due to be filed on November 13, 2019 pursuant to California Code of Civil Procedure section 1005, subdivision (b).  There are no proofs of service attached to these oppositions.

The Court is willing to continue the hearing on these motions at Moving Party’s request for Moving Party to have additional time to file a reply.  If Moving Party does not elect a continuance, the Court provides the substantive ruling to the motions below.

Substantive Ruling

On August 14, 2019, Moving Party served Form Interrogatories, Request for Production, and Request for Admission (All Set One) on Plaintiff by U.S. mail.  (All Three Declarations of Zubin Farinpour (“Farinpour Decl.”), ¶ 2, Exh. A.)  Moving Party gave one extension to provide verified responses by October 8, 2019.  (Farinpour Decl., ¶¶ 4, Exh. C-D.)  Plaintiff had failed to provide the outstanding responses as of the signing of Zubin Farinpour’s declarations on October 23, 2019.  (Farinpour Decl., ¶ 5.)  The motions are therefore properly granted.

Plaintiff’s counsel argues it acted with substantial justification because Plaintiff’s counsel was experiencing mail theft from approximately August 20, 2019 to September 5, 2019.  (Oppositions, p. 2:8-2:11.)  This is not a substantial justification.  Plaintiff was provided an extension to provide the responses by October 8, 2019.  As Plaintiff admits, he was provided the written discovery requests after asking Moving Party for them.  (Oppositions, p. 2:12-2:14.)  Thus, Plaintiff had another opportunity to provide the responses, but failed to do so without any observable justification.

Moving Party’s request for $2,812.50 in sanctions consists of six hours in drafting the moving papers, four and a half hours in drafting the replying papers, and three hours in appearing at the hearings at a rate of $195 an hour, plus three $60 filing fees.  The Court finds this to be unreasonable.  The moving and replying papers are straight-forward and nearly identical.  Rather, the Court finds $1,155 ($195/hr. x 5 hrs. plus three $60 filing fees) to be a reasonable amount of sanctions to be imposed against Plaintiff and his counsel of record for their abuse of the discovery process.

Therefore, the motions are GRANTED.

Plaintiff is ordered to serve verified responses without objections to Moving Party’s Form Interrogatories, Special Interrogatories, and Request for Production (Set One) within 20 days of this ruling.

The Court deems the matters within Moving Party’s Request for Admissions (Set One) to be true against Plaintiff.

Plaintiff and his counsel of record are ordered to pay Moving Party $1,155, jointly and severally, within 30 days of this ruling.

Moving Party is ordered to give notice of this ruling.

Case Number: BC625899    Hearing Date: October 30, 2019    Dept: 4A

Motion for Order to Show Cause Re: Contempt and Request for Statutory Damages and Monetary Sanctions

Having considered the moving papers, the Court rules as follows.  No opposition was filed.

BACKGROUND

On July 1, 2016, Plaintiff Kisean Anderson (“Plaintiff”) filed a complaint against Defendant Penthouse Nightclub & Day Club alleging assault, battery, and negligent hiring, supervision, and retention for an altercation that occurred on June 12, 2016.

On April 10, 2018, Plaintiff amended his complaint to name Defendant Aegis Security & Investigations Inc. (“Aegis Security”) as Doe 2 and Defendant SKWS Enterprises, Inc. as Doe 3.

On August 9, 2018, Defendant/Cross-Complainant Aegis Security filed a cross-complaint against Defendant/Cross-Defendant SKWS Enterprises, Inc. for indemnity, apportionment, contribution, and declaratory relief.

On January 11, 2019, Defendant/Cross-Complainant Aegis Security was dismissed as a defendant with prejudice.

On April 25, 2019, Cross-Complainant Aegis Security filed a motion to compel nonparty Iarusso & Dagher LLP to comply with a deposition subpoena for production of business records to challenge its objection on the ground of attorney work product.  On July 23, 2019, the Court granted Aegis Security’s motion.

On September 17, 2019, Aegis Security filed this motion for order to show cause re: contempt against Michelle Iarusso and the law firm Iarusso & Dagher LLP and for statutory damages and monetary sanctions.

Trial is set for June 9, 2020.

PARTY’S REQUESTS

Aegis Security moves for a court order requiring third party witness Michelle Iarusso (“Iarusso”) and the law firm Iarusso & Dagher LLP to appear before the Court and show cause why Iarusso should not be held in contempt of this Court.  

Aegis Security also requests statutory forfeiture and monetary damages against Iarusso pursuant to Code of Civil Procedure section 1992 and reasonable attorney fees and costs pursuant to Code of Civil Procedure section 1218.

LEGAL STANDARD

Code of Civil Procedure section 2023.010 provides, in relevant part: 

To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process:

(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. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

(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 by one of the following orders:

(1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.

(2) An order staying further proceedings by that party until an order for discovery is obeyed.

(3) An order dismissing the action, or any part of the action, of that party.

(4) An order rendering a judgment by default against that party.

(e) The court may impose a contempt sanction by an order treating the misuse of the discovery process as a contempt of court.

“The trial court has broad discretion in selecting discovery sanctions, subject to reversal only for abuse. [Citations.] The trial court should consider both the conduct being sanctioned and its effect on the party seeking discovery and, in choosing a sanction, should “ ‘attempt [ ] to tailor the sanction to the harm caused by the withheld discovery.’” [Citations.] The trial court cannot impose sanctions for misuse of the discovery process as a punishment. [Citations.] (Doppes v. Bentley Motors, Inc. (2009) 174 Cal. App. 4th 967, 992.)  “The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. “Discovery sanctions ‘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.’”  (Id.

While a contempt sanction is available for violation of a discovery order under some circumstances, such a sanction may only be imposed based on a finding that the contemnor has engaged in a willful failure to obey a valid court order and may not be imposed for mere inadvertence or for an inability to comply.  (Chapman v. Superior Court (1968) 261 Cal. App. 194, 200.)  Contempt is “’a drastic remedy, to be employed only when necessary to the proper and orderly conduct of judicial proceedings. A charge of contempt of court must be considered judicially as the question of guilt of any criminal offense must be, and a judge may not punish for contempt merely because he has suffered annoyance through the failure of some order he has made to receive instant observance.’”  (Id. at p. 201 [Citation omitted].) 

DISCUSSION

Aegis Security seeks an order requiring Iarusso and Iarusso & Dagher LLP to appear before the Court and show cause why Iarusso should not be held in contempt of this Court in light of their violation of the Court’s July 23, 2019 order for Iarusso & Dagher LLP.

The order at issue is the July 23, 2019 court order granting Aegis Security’s motion to compel Iarusso & Dagher LLP to comply with the deposition subpoena for production of business records and ordering Iarusso & Dagher LLP to serve responsive documents to Aegis Security’s February 26, 2019 deposition subpoena within thirty days of the court’s order.  (Hopstone Decl., ¶ 17, Ex. 1.)  This sufficient to establish the order as valid for purposes of the charging affidavit.

Aegis Security has shown that Iarusso and Iarusso & Dagher LLP had actual knowledge of the July 23, 2019 court order.  Iarusso was present at the July 23, 2019 hearing.  (Hopstone Decl., ¶ 17, Ex. 1.)  Additionally, Aegis Security served a Notice of Ruling of the July 23, 2019 court order on Iarusso and Iarusso & Dagher LLP on August 5, 2019.  (Id., ¶ 18, Ex. 2.)

Finally, Aegis Security’s evidence is sufficient to demonstrate that Iarusso and Iarusso & Dagher LLP failed to comply with the July 23, 2019 court order.  The July 23, 2019 court order required Iarusso & Dagher LLP to serve responses to Aegis Security’s deposition subpoena within 30 days of the order.  (Hopstone Decl., ¶ 17, Ex. 1.)  According to Aegis Security’s counsel, the August 22, 2019 deadline came and went and no responses were received.  (Id., ¶ 19.)  Aegis Security’s counsel sent a letter to Iarusso on August 27, 2019 advising that Aegis Security would file a motion for contempt if she continued to ignore the matter.  (Id., ¶ 19, Ex. 3.)  Aegis Security’s counsel declares that Iarusso ignored the letter and no response to the subpoena has been received to date.  (Id., ¶ 20.) Iarusso and Iarusso & Dagher have not filed a written opposition to the motion before the Court.

While Aegis Security has established that Iarusso and Iarusso & Dagher failed to comply with the July 23, 2019 order, the Court finds that the extreme sanction of contempt is inappropriate at this juncture.  At this point, all that has been shown is a failure to comply and a failure to respond to requests for compliance.  Instead, the Court finds that a further court order accompanied by monetary sanctions is the appropriate sanction to enforce the Court’s order. 

Accordingly, the Court orders Iarusso and Iarusso & Dagher LLP to provide responsive documents to Aegis Securitys February 26, 2019 deposition subpoena within 30 days of this order, or by November 29, 2019. 

The Court issues an order to show cause under Code of Civil Procedure section 2023.020 why Iarusso and Iarusso & Dagher LLP should not be ordered to pay Aegis Security $150 for each day that they fail to produce the subpoenaed documents beginning on December 3, 2019, with this monetary sanction being imposed on Iarusso and Iarusso & Dagher LLP, jointly and severally.  The OSC re sanctions is set for hearing on December 2, 2010 at 1:30 p.m. in Department 4A. 

The motion for an OSC re: Contempt is DENIED, but the Court orders an alternative sanction under Code of Civil Procedure section 2023.020.

Aegis Security is ordered to provide notice of the Court’s order.