This case was last updated from Los Angeles County Superior Courts on 05/28/2019 at 02:33:50 (UTC).

ALEN PETROYSAN VS EDDY ALLAHVERDIAN ET AL

Case Summary

On 07/19/2017 ALEN PETROYSAN filed a Personal Injury - Other Personal Injury lawsuit against EDDY ALLAHVERDIAN. 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:

    ****9012

  • Filing Date:

    07/19/2017

  • 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

PETROSYAN ALEN

Defendants and Respondents

ALLAHVERDIAN EDDY

ALLAHVERDIAN MARIA

DOES 1 THROUGH 50

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

MACIAS SEAN E. ESQ.

AVANESIAN MICHAEL

Defendant Attorneys

CZAJKOWSKYJ CYRILLUS SIMEON

BRAUNSTEIN GEORGE GREGORY

 

Court Documents

CROSS-COMPLAINT FOR: (1) BREACH OF CONTRACT (2) PRIVATE NUISANCE (3) DECLARATORY RELIEF (4) INJUNCTIVE RELIEF

8/20/2018: CROSS-COMPLAINT FOR: (1) BREACH OF CONTRACT (2) PRIVATE NUISANCE (3) DECLARATORY RELIEF (4) INJUNCTIVE RELIEF

DEFENDANTS' ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

8/20/2018: DEFENDANTS' ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

STATEMENT OF DAMAGES

9/19/2018: STATEMENT OF DAMAGES

STATEMENT OF DAMAGES

9/19/2018: STATEMENT OF DAMAGES

Answer

10/18/2018: Answer

Notice

10/18/2018: Notice

Notice of Change of Address or Other Contact Information

12/18/2018: Notice of Change of Address or Other Contact Information

Notice

2/5/2019: Notice

Opposition

4/24/2019: Opposition

Minute Order

4/24/2019: Minute Order

Minute Order

4/24/2019: Minute Order

Notice of Ruling

4/24/2019: Notice of Ruling

Motion to Compel

5/15/2019: Motion to Compel

Motion to Compel

5/15/2019: Motion to Compel

REQUEST FOR ENTRY OF DEFAULT

7/23/2018: REQUEST FOR ENTRY OF DEFAULT

REQUEST FOR ENTRY OF DEFAULT

7/23/2018: REQUEST FOR ENTRY OF DEFAULT

PROOF OF SERVICE SUMMONS

8/24/2017: PROOF OF SERVICE SUMMONS

PROOF OF SERVICE SUMMONS

8/24/2017: PROOF OF SERVICE SUMMONS

15 More Documents Available

 

Docket Entries

  • 05/15/2019
  • at 10:00 AM in Department 4A, Christopher K. Lui, Presiding; Final Status Conference - Not Held - Advanced and Continued - by Court

    Read MoreRead Less
  • 05/15/2019
  • Motion to Compel (Responses to Requests for Production of Documents); Filed by Alen Petrosyan (Plaintiff)

    Read MoreRead Less
  • 05/15/2019
  • Motion to Deem RFA's Admitted; Filed by Alen Petrosyan (Plaintiff)

    Read MoreRead Less
  • 05/15/2019
  • Motion to Compel (Responses to Form and Special Interrogatories); Filed by Alen Petrosyan (Plaintiff)

    Read MoreRead Less
  • 04/24/2019
  • at 10:42 AM in Department 4A, Christopher K. Lui, Presiding; Ex-Parte Proceedings

    Read MoreRead Less
  • 04/24/2019
  • at 08:30 AM in Department 4A, Christopher K. Lui, Presiding; Hearing on Ex Parte Application (to Continue Trial Date, Final Status Conference Date and Related Deadlines) - Not Held - Vacated by Court

    Read MoreRead Less
  • 04/24/2019
  • at 08:30 AM in Department 4; Hearing on Ex Parte Application (to Continue Trial Date, Final Status Conference Date and Related Deadlines) - Not Held - Clerical Error

    Read MoreRead Less
  • 04/24/2019
  • at 12:53 PM in Department 4A, Christopher K. Lui, Presiding; Nunc Pro Tunc Order

    Read MoreRead Less
  • 04/24/2019
  • Minute Order ( (Plaintiff and Cross-Defendant Alen Petrosyan's Ex Parte Motio...)); Filed by Clerk

    Read MoreRead Less
  • 04/24/2019
  • Minute Order ( (Nunc Pro Tunc Order)); Filed by Clerk

    Read MoreRead Less
26 More Docket Entries
  • 07/23/2018
  • REQUEST FOR ENTRY OF DEFAULT

    Read MoreRead Less
  • 08/24/2017
  • PROOF OF SERVICE SUMMONS

    Read MoreRead Less
  • 08/24/2017
  • Proof of Service (not Summons and Complaint); Filed by Alen Petrosyan (Plaintiff)

    Read MoreRead Less
  • 08/24/2017
  • Proof of Service (not Summons and Complaint); Filed by Alen Petrosyan (Plaintiff)

    Read MoreRead Less
  • 08/24/2017
  • PROOF OF SERVICE SUMMONS

    Read MoreRead Less
  • 07/25/2017
  • First Amended Complaint; Filed by Alen Petrosyan (Plaintiff)

    Read MoreRead Less
  • 07/25/2017
  • FIRST AMENDED COMPLAINT FOR: 1. TRESPASS; AND 2. NEGLIGENCE (DEMAND FOR JURY TRIAL)

    Read MoreRead Less
  • 07/19/2017
  • SUMMONS

    Read MoreRead Less
  • 07/19/2017
  • Complaint; Filed by Alen Petrosyan (Plaintiff)

    Read MoreRead Less
  • 07/19/2017
  • COMPLAINT FOR 1) TRESSPASS; AND 2) NEGLIGENCE

    Read MoreRead Less

Tentative Rulings

Case Number: BC669012    Hearing Date: February 28, 2020    Dept: NCD

TENTAITVE RULING

Calendar: 21

Date: 2/28/20

Case No: BC 669012 Trial Date: None Set

Case Name: Petrosyan v. Allahverdian, et al.

MOTION FOR TERMINATING SANCTION

Moving Party: Plaintiff Alen Petrosyan

Responding Party: Defendants Eddy Allahverdian and Maria Allahverdian

16/+5-day lapse (CCP §1005): No

RELIEF REQUESTED:

Order granting monetary and terminating sanctions

FACTUAL BACKGROUND:

Plaintiff Alen Petroysyan alleges that he is the owner of property located at 652 Robin Glen in Glendale and that defendants Eddy Allahverdian and Maria Allahverdian, the owners of property located at 658 Robin Glen Drive in Glendale, in June of 2017 hired gardeners and instructed them to chop down the trees on plaintiff’s land for defendants’ view. Plaintiff alleges that plaintiff consented to a small trim of certain trees on plaintiff’s land, of six inches, but defendants’ gardeners, under the instruction of defendants, completely and totally chopped the trees and foliage on plaintiff’s land to nearly the stumps of the trees. Plaintiff alleges that defendants have met with plaintiff’s representative to discuss the chopping of the trees, and defendant Eddy Allahverdian apologized and acknowledged the chopping was not authorized but refused to resolve the matter without judicial intervention. Plaintiff alleges that defendants’ conduct constituted an unlawful trespass to plaintiff’s property and negligence and seeks damages.

Defendants have filed a cross-complaint against plaintiff Petrosyan, alleging that the parties’ real properties are subject to CC&Rs pursuant to which no building, tree or shrub that might obstruct the view from any lot, shall be higher than fifteen feet above the ground level of any lot, but that there are multiple trees on the Petrosyan property that exceed the maximum height allowance. It is also alleged that the failure of cross-defendant to properly maintain the trees on the Petrosyan property has caused an obstruction to the view from cross-complainants’ property and interfered with the comfortable enjoyment of the property. The cross-complaint alleges causes of action for breach of contract, private nuisance, declaratory relief, and injunctive relief.

ANALYSIS:

Procedural

Insufficient Notice

The opposition argues that the notice of motion violates CCP § 1005 (b), as it was not served and filed at least 16 days before the hearing. The reply concedes that the motion, originally noticed to be heard on January 3, 2020, was filed and served only fifteen days prior to the hearing, or one day late.

Under CCP section 1005(b):

“Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing.”

The subdivision provides that “the court, or a judge thereof, may prescribe a shorter time.”

The reply argues that there has been no prejudice from this irregularity. It does appear that defendants have prepared an opposition on the merits, and that due to the continuance of the hearing on the matter, has had sufficient time to consider the matter on its merits to address it at hearing.

It is held that insufficient or defective notice may be waived if opposing counsel appears at the hearing and argues the merits of the motion. Alliance Bank v. Murray (1984, 2nd Dist) 161 Cal.App.3d 1, 7; Carlton v. Quint (2000, 2nd Dist.) 77 Cal.App.4th 690, 697. The court could decline to consider the motion as not brought on sufficient notice, but finds that any objection to the sufficiency of the notice has been waived.

Substantive

Plaintiff seeks an order granting monetary and terminating sanctions, and entering the default of defendants in this action, arguing that defendants have engaged in discovery abuse and spoliation of evidence. Specifically, plaintiff argues that defendants initially claimed in verified discovery responses that defendants simply found the gardener who performed the tree trimming on the street, and did not know his name and had no way of locating him, and Maria Allahverdia testified to that in her deposition. However, in the deposition of Eddy Allahverdian, defendant testified that the gardener had in fact worked for defendant for years and that he had his contact information on his cell phone.

Plaintiff submits Responses of Eddy Allahverdian to Special Interrogatories but does not appear to have submitted the interrogatories themselves, which are not repeated in the responses. The memorandum indicates the interrogatories requested identifying information for any person who was present or a witness to the incident at issue, which interrogatories defined “identify” to include a responsive individual’s telephone number. [Memo. p. 6].

The responses evidently at issue state, “Thomas whose surname and address are not known.” [Ex. D]. This is extremely sloppy, as on the record before the court, it cannot be determined that the responses were not appropriate, as it is possible that defendant did not know Thomas’ surname and address, and there is no affirmative representation that a phone number is not known, and no way for the court to confirm that the Special Interrogatories expressly requested phone numbers.

In any case, plaintiff also submits the deposition transcript of defendant Eddy Allahverdian, without highlighting the relevant portions. Plaintiff evidently relies on testimony in which it was stated that “Thomas” cut the trees at issue, has been trimming the trees “Since 2005 on an as-needed basis,” and that the deponent has Thomas’ phone number in his cell phone. [Ex C., Allahverdian Depo. p. 47:15- 48:22]. Counsel conducting the deposition then stated on the record:

“Counsel, I’m going to make an instruction under spoliation of evidence that evidence be preserved. We have testimony—sworn testimony that the evidence exists now. It’s relevant to this case. It’s producible, and I’d like to get a copy of it, and prior to getting a copy of it, I’m instructing that the evidence be preserved.

[Ex. C, Allahverdian Depo. p. 48:23-49:5].

Evidently, although plaintiff has requested through meet and confer that defendants provide the telephone number which “was explicitly called for and which [defendant] testified at his deposition he has had since 2005,” this information has not been voluntarily provided. [Martin Decl. ¶ 2, Ex. A].

The motion argues that terminating sanctions are appropriate here under CCP § 2023.030, which authorizes sanctions for “misuse of the discovery process,” and that the imposition of sanctions does not require violation of a prior court order, but misuse of discovery includes, “[f]ailing to respond or submit to an authorized method of discovery,” “[m]aking, without substantial justification, and unmeritorious objection to discovery,” and “[m]aking an evasive response to discovery.” CCP § 2023.010 (d), (e), (f).

Plaintiff relies on Cedars Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, in which the California Supreme Court considered the issue of whether to recognize an independent tort for spoliation of evidence, which it declined to do in a situation where “the spoliation victim knows or should have known of the alleged spoliation before the trial or other decision on the merits of the underlying action.” Cedars Sinai, at 17-18. The Court reasoned that in such a case, a party had available to it many other remedies, including the evidentiary inferences permitted by jury instructions concerning willful suppression of evidence, and the broad range of sanctions from conduct amounting to “misuse of the discovery process” in the discovery statutes. Cedars Sinai, at 11-12.

Under the court’s inherent equity power, derived from the state constitution, including supervisory, and administrative powers, and the court’s inherent power to control litigation, it has been recognized that a court may issue evidentiary or a terminating sanctions where there has been deliberate, egregious misconduct by a plaintiff, even where there has been no violation of a court order. See Stephen Slesinger, Inc. v. The Walt Disney Co. (2007) 155 Cal.App.4th 736, 763; Do It Urself Moving & Storage v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 36 (“Here, it is conceded that plaintiffs are unable to provide the promised items of discovery. Under the circumstances of this case, a warning to plaintiffs, in the form of a formal order to comply, would have been futile.”).

The standard to obtain a terminating sanction is extremely high. In Stephen Slesinger, the Second District cautioned that “dismissal is always a drastic remedy to be employed only in the rarest of circumstances.” Stephen Slesinger at 764, italics in original.

The court then held that under certain circumstances, misconduct could warrant dismissal:

“we hold only that when the plaintiff has engaged in misconduct during the course of the litigation that it deliberate egregious, and that renders any remedy short of dismissal inadequate to preserve the fairness of the trial, the trial court has the inherent power to dismiss the action.”

Stephen Slesinger, at 764.

In making this determination, the trial court should consider all relevant circumstances:

“The decision whether to exercise the inherent power to dismiss requires consideration of all relevant circumstances, including the nature of the misconduct (which must be deliberate and egregious, but may or may not violate a prior court order), the strong preference for adjudicating claims on the merits, the integrity of the court as an institution of justice, the effect of the misconduct on a fair resolution of the case, and the availability of other sanctions to cure the harm.”

Stephen Slesinger, at 764.

The trial court’s exercise of this power is reviewed for abuse of discretion and will be reversed “only for manifest abuse exceeding the bounds of reasons.” Stephen Slesinger, at 765.

The circumstances in Stephen Slesinger involved a lawsuit by a corporation, SSI, the holder of the copyright rights in the A.A. Milne Winnie-the-Pooh books, against The Walt Disney Company, for alleged irregularities in accounting for and paying for exploitation of the Winnie-the-Pooh rights under an agreement between the parties. SSI engaged a private investigator who obtained confidential Disney documents by trespassing on and breaking into Disney office buildings and secure trash receptacles. SSI also attempted to alter copies of the documents obtained after receiving them from its investigator to delete any reference to their confidentiality. After extensive hearing on the matter, the trial court concluded that SSI’s conduct was deliberate, egregious, and that the only fair resolution of the matter was to impose a terminating sanction.

In Do It Urself, the circumstances involved an accounting audit which plaintiff had assured the court and opposing party several times would be timely completed, obtaining trial continuances based on this promise. The audit was not ever completed, and plaintiff ultimately indicated it could not be completed. Plaintiff also failed to provide any backup documentation to the portion of the report which had been completed. The Second District upheld the imposition of evidentiary sanctions, precluding plaintiff from introducing the withheld discovery, but reversed the granting of a motion for summary judgment based on those sanctions.

Plaintiff here argues that the damage done by defendants’ discovery abuse cannot be undone at this late stage, because defendant admitted to having the information at the deposition in October of 2019, and that if the gardener was beyond the reach of plaintiff then, he is most certainly gone now or his testimony “prepared” beyond usefulness. Plaintiff argues that a fair trial is now all but impossible.

Here, it is not even clearly established that there has been a misuse of the discovery process, as the court cannot review what the Special Interrogatories called for. This also appears to be a situation where the harm can be easily addressed by having the information turned over now, as there is no trial date set, so sufficient time to conduct discovery with respect to the witness, and plaintiff is in a position where it can bring up the failure to provide the information earlier, if appropriate, to the trier of fact, and permit the trier of fact to infer that an attempt to obstruct discovery suggests the evidence would not be favorable for defendants.

The court on this showing cannot find that there was any deliberate, egregious misconduct, which could not be addressed by means other than dismissal, as was clearly the case in Stephen Slesinger.

In addition, the dismissal sanction granted in Stephen Slesinger followed a full evidentiary hearing, eliminating any argument that the sanction had been imposed without “full procedural due process.” See Stephen Slesinger, at 761.

The Stephen Slesinger opinion also notes that the trial court had considered but rejected lesser sanctions, seemingly focusing on the nature of the harm in that case, in effect that the confidential information obtained improperly could not be “purged” from the minds of the parties who had obtained it, and that the trial court did not believe plaintiff would fully comply with any other remedial court order. See Slesinger, at 756. Here, there are no such effects from the alleged misconduct. No terminating sanctions are awarded.

The opposition seems to argue that the motion cannot be granted because defendants have not moved to compel further responses to discovery, and cannot do so now, as the time to do so has expired. As argued in the reply, this is a situation where plaintiff could not have known the interrogatory responses were incomplete until the deposition, and the argument ignores the case law cited in the moving papers which permits the court to grant relief even where no court order has been violated. It is a bit alarming that the opposition does not offer to provide the telephone number promptly. This issue will be discussed at the hearing, and the court will enter an order that the information be provided forthwith.

The motion also appears to seek monetary sanctions. However, the notice of motion does not clearly state against whom such sanctions are sought, there is no declaration submitted in support of any sanctions request, and the memorandum does not point to a statutory basis for recovery of sanctions.

CCP § 2023.040 clearly requires that:

“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”

(Emphasis added).

The reply argues that plaintiff was not required to comply with the statute, as relief is sought based on equity. To the extent such fees are sought under the court’s equity power, this argument was rejected in Stephen Slesinger:

“In considering the availability of other sanctions, a trial court must be mindful that under Bauguess, its inherent authority to sanction for egregious misconduct does not include the power to award attorney fees to punish that misconduct. As we have discussed, Bauguess held that an award of attorney fees must be authorized by statute or contract.”

Stephen Slesinger, at 765, n. 19.

No such statutory or contractual authority is cited here, and the monetary sanctions requested are denied.

Defendant in the opposition seeks sanctions for the expense of opposing the motion. Although the motion should be for the most part denied, plaintiff appears to have been justified in bringing such a motion, and defendant’s conduct in continuing to fail to disclose the information has contributed to the necessity to bring and maintain the motion. No sanctions are awarded.

RULING:

The court in its discretion has reluctantly considered the motion, despite the fact it was admittedly not served or filed on proper notice.

Plaintiff Alen Petrosyan’s Motion for Terminating Sanctions is DENIED, as the court cannot find from the showing presented that the circumstances warrant the court exercising its inherent authority to impose the drastic sanction of termination. The court cannot find at this point that the misconduct in this case was deliberate or egregious such that it has rendered any remedy short of striking of the answer inadequate to preserve the fairness of the trial. The court instead orders that defendant Eddy Allehverdian produce the telephone number of “Thomas,” as reflected in the cell phone referenced in his deposition, within five days. While the court will entertain appropriate jury instructions concerning suppression of evidence, the relief sought is overly broad and is not proportionate to the dereliction, and does not seek to redress any harm to plaintiff which cannot be addressed by further discovery and investigation once the contact information for the witness is disclosed.

Monetary sanctions requested by both sides are DENIED.

Case Number: BC669012    Hearing Date: January 31, 2020    Dept: NCD

TENTATIVE RULING

Calendar: 7

Case Number: BC 669012

Date: 1/31/20 Trial date: None Set

Case Name: Petrosyan v. Allahverdian, et al.

MOTION FOR SUMMARY JUDGMENT

(OR, in the Alternative, Summary Adjudication)

[CCP § 437c; CRC 3.1350 et seq.]

Moving Party: Plaintiff Alen Petrosyan

Responding Party: Defendants Eddy Allahverdian and Maria Allahverdian

Relief Requested:

Summary judgment in favor of plaintiff on the First Amended Complaint

In the alternative, summary adjudication of issues

Causes of Action from First Amended Complaint

1) Trespass

2) Negligence

SUMMARY OF COMPLAINT:

Plaintiff Alen Petroysyan alleges that he is the owner of property located at 652 Robin Glen in Glendale and that defendants Eddy Allahverdian and Maria Allahverdian, the owners of property located at 658 Robin Glen Drive in Glendale, in June of 2017 hired gardeners and instructed them to chop down the trees on plaintiff’s land for defendants’ view. Plaintiff alleges that plaintiff consented to a small trim of certain trees on plaintiff’s land, of six inches, but defendants’ gardeners, under the instruction of defendants, completely and totally chopped the trees and foliage on plaintiff’s land to nearly the stumps of the trees. Plaintiff alleges that defendants have met with plaintiff’s representative to discuss the chopping of the trees, and defendant Eddy Allahverdian apologized and acknowledged the chopping was not authorized but refused to resolve the matter without judicial intervention. Plaintiff alleges that defendants’ conduct constituted an unlawful trespass to plaintiff’s property and negligence and seeks damages.

Defendants have filed a cross-complaint against plaintiff Petrosyan, alleging that the parties’ real properties are subject to CC&Rs pursuant to which no building, tree or shrub that might obstruct the view from any lot, shall be higher than fifteen feet above the ground level of any lot, but that there are multiple trees on the Petrosyan property that exceed the maximum height allowance. It is also alleged that the failure of cross-defendant to properly maintain the trees on the Petrosyan property has caused an obstruction to the view from cross-complainants’ property and interfered with the comfortable enjoyment of the property. The cross-complaint alleges causes of action for breach of contract, private nuisance, declaratory relief, and injunctive relief.

ANALYSIS:

Defendants argue in the opposition that the motion must be denied on the ground it was not brought on sufficient notice. Defendants argues that the moving papers here were filed on November 22, 2019, only 70 days before the hearing, and served on November 22, 2019, only 71 days prior to the hearing.

CCP § 437c(a)(2) requires that a motion for summary judgment be brought on 75 days’ notice:

“Notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for the hearing.”

With respect to the 75 days’ notice requirement, the requirement is held mandatory in the absence of a stipulation between the parties. The Second District has considered whether trial courts may shorten this time and concluded: “we hold that, in light of the express statutory language, trial courts do not have authority to shorten the minimum notice period for summary judgment hearings.” McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 118; See also Urshan v. Musicians’ Credit Union (2004) 120 Cal.App.4th 758, 764 (“the Legislature did not…authorize a trial court to shorten the minimum notice period for hearings on summary judgment motions. Such discretionary language is notably absent from the statute. Moreover, the statutory language regarding minimum notice is mandatory, not directive.”) See also Cuff v. Grossmont Union High School District (2013) 221 Cal.App.4th 582, 595-596.

Here, the motion noticed a hearing date of January 31, 2020. Seventy-five days prior to this date was November 17, 2019, computing the time by counting backward from the hearing date, excluding the day of the hearing, as required under CCP § 12c (a) (“Where any law requires an act to be performed no later than a specified number of days before a hearing date, the last day to perform that act shall be determined by counting backward from the hearing date, excluding the date of the hearing as provided by Section 12.”) November 17, 2019 was a Sunday, so that the notice period to provide “at least 75 days” notice actually expired prior to that date. The motion was filed on November 22, 2019, and the proof of service shows service was made by personal service on counsel on November 21, 2019, several days short of the 75-day notice period required under any calculation.

There does not appear to have been any stipulation between the parties to shorten time, and the court has no authority to, for example, continue the hearing date to cure this defect. See Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1268 (the Second District holding 76-day notice given on mailed motion was invalid, so that at the noticed motion hearing, “the trial court had no authority to continue the hearing a mere four days. At that point, the notice period had to begin anew…The four-day continuance was a violation of due process and an abuse of discretion.”).

The court declines to consider the motion as not brought on sufficient notice.

(Even if the court were to consider the substance of the motion, it would have to be denied. The motion is brought by plaintiff, seeking summary judgment in plaintiff’s favor, but does not address the issue of damages. It is held that he summary judgment procedures obligate a plaintiff to prove each element of plaintiff’s cause of action, including damages. In Department of Industrial Relations v. UI Video Stores, Inc. (1997) 55 Cal.App.4th 1084, the court of appeal expressly held that where issues of the calculation of damages remain to be determined, it is not appropriate to grant summary judgment:

Although we have determined that Blockbuster is liable to appellant, Code of Civil Procedure section 437c makes no provision for a partial summary judgment as to liability. Even summary adjudication may be granted only in limited instances. (Code Civ. Proc., § 437c, subd. (f)(1).) Because issues of the calculation of damages apparently remain to be determined, it is not appropriate to grant summary judgment for appellant at this time. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 1996) ¶ 10:40.1, p. 10-17 [summary judgment or adjudication improper where amount of damages raises factual issue].) The correct procedure below would have been a motion to bifurcate the issue of liability, which the parties could have tried upon the undisputed facts. (Code Civ. Proc., § 598.) A decision on the issue of liability against the party on whom liability is sought to be imposed does not result in a judgment until the issue of damages is resolved.

Department of Industrial Relations, at 1097.

The motion also requests that the court determine that the evidence before it warrants punitive damages. Punitive damages may not be awarded on a motion for summary judgment. Haines v. Parra (1987) 193 Cal.App.3d 1553, 1560-1561. Finally, the “Issues” raised by the motion for summary adjudication are not addressed to, and do not appear to dispose of an entire cause of action, affirmative defense, a claim for damages, or issue of duty. See CCP § 437c(f)(1) (“A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”)).

RULING:

Plaintiff Alen Petrosyan’s Motion for Summary Judgment, or, in the Alternative, Summary Adjudication of Issues, is NOT CONSIDERED BY THE COURT.

The motion was not served on sufficient notice but was filed only 70 days prior to the date for hearing and served only 71 days prior to the time appointed for the hearing. Under CCP § 437c(a)(2) “Notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for the hearing.” This requirement is mandatory in the absence of a stipulation between the parties, and trial courts do not have authority to shorten the minimum notice period for summary judgment hearings. McMahon v. Superior Court (2003, 2nd Dist.) 106 Cal.App.4th 112, 118; Urshan v. Musicians’ Credit Union (2004) 120 Cal.App.4th 758, 764; Cuff v. Grossmont Union High School District (2013) 221 Cal.App.4th 582, 595-596.

Case Number: BC669012    Hearing Date: January 17, 2020    Dept: NCD

TENTATIVE RULING

Calendar: 23

Date: 1/17/19

Case No: BC 669012 Trial Date: None Set

Case Name: Petrosyan v. Allahverdian, et al.

DISCOVERY MOTIONS (3 Motions)

Moving Party: Plaintiff Alen Petrosyan

Responding Party: Defendants Eddy Allahverdian and Maria Alahverdian

RELIEF REQUESTED:

Responses to Form Interrogatories, Set One and Special Interrogatories, Set One

Responses to Request for Production of Documents, Set One

Order Deeming Request for Admissions (Set One) Admitted

CHRONOLOGY

Date Discovery served: November 15, 2018

Extension to Respond: May 10, 2019, without objection (Ex. G)

Date Responses served: NO RESPONSES SERVED

Date Motion served: May 15, 2019 Timely

ANALYSIS:

Interrogatories and Documents

The oppositions indicate that defendants served verified responses to the subject discovery on May 10, 2019, five days before the motions to compel were filed. The responses are attached to the oppositions and show service of verified responses by mail that date, which was within the agreed upon extended time to respond. [Ex. G]. This renders the motions moot, leaving only the issue of sanctions.

Requests for Admissions

Under CCP § 2033.280 (a), a party who fails to serve a timely response to requests for admissions “waives any objection to the requests, including one based on privilege or on the protection for work product….” In addition, the requesting party may move for an order that “the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction....” CCP § 2033.280(b). The Code specifies that, “The court shall make this order, 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.” CCP § 2033.280(c).

In this case, the opposition attaches a copy of the responses served on the agreed upon extended date, which are verified, without objections, and appear to be in substantial compliance with Section 2033.220. [See Ex. D].

Accordingly, the motion is denied, leaving the issue of sanctions.

Sanctions

With respect to Requests for Admissions, CCP § 2033.280(c) provides:

“It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.”

As argued in the opposition, it appears that the responses were served within the agreed upon time, on May 10, 2019. [Ex. D]. It also appears that counsel for defendants sent an email on May 10, 2019, advising that the discovery responses were being served that date. [Ex. E]. On May 14, 2019, another email was sent by counsel for defendants indicating that counsel had “checked” and responses were served by mail May 10 and should arrive shortly. [Ex. F]. The motion was filed the following day, just after noon.

It accordingly does not appear that the conduct of defendants necessitated the motion, as responses were served as agreed, but unfortunately took time to be delivered through the mail. No sanctions are awarded under the circumstances.

With respect to interrogatories, under CCP § 2030.290(c), “The court shall impose a monetary sanction… against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, 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.” A similar provision applies to document demands. See CCP § 2031.300(c).

The motions here are moot, and would likely not have been granted, as the responses were served within the agreed upon extension to respond. No sanctions are awarded.

RULING:

Motion of Plaintiff Alen Petrosyan to Compel Responses to Form Interrogatories (Set One) and Special Interrogatories (Set One) is MOOT in light of the service of responses on May 10, 2019.

Monetary sanctions are DENIED.

Motion of Plaintiff Alen Petrosyan to Compel Responses to Requests for Production of Documents to Defendants Eddy Allahverdian and Maria Allahverdian is MOOT in light of the service of responses on May 10, 2019.

Monetary sanctions are DENIED.

Motion of Plaintiff Alen Petrosyan to Deem Request for Admissions (Set One) Admitted by Defendants Eddy Allahverdian and Maria Allahverdian is MOOT in light of the service of responses on May 10, 2019, before the filing of the motion. The court finds that in any case, the responses substantially comply with the provisions of CCP § 2033.220.

Monetary sanctions are DENIED, as the responses were timely served, and responding parties did not necessitate the motion.