Tentative Rulings

Case Number: ****4506 Hearing Date: September 26, 2022 Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Background

On November 22, 2017, plaintiff Christopher Zangara-Payer (“Zangara”) filed the complaint in the instant action against his uncle, defendant David Payer (“Payer”) to seek the dissolution of the Nominal Defendant, Payer Family, LLC.

On February 2, 2018, Payer filed a Cross-Complaint against Zangara and Payer Family LLC for (1) Forgery, (2) Lack of Intent/Mistake, (3) Quiet Title, (4) Constructive Trust, (5) Accounting, and (6) Restitution and Offset. Plaintiff/Cross-Defendant Zangara filed a demurrer to the Cross-Complaint, which the court sustained in its entirety without leave to amend on June 6, 2018. (Minute Order 6/6/18.) On July 12, 2019, Payer dismissed the Cross-Complaint without prejudice as to the remaining defendant Payer Family LLC.

On July 15, 2019, the Court stayed the instant action pending Payer’s petition to reopen the probate matter. (Minute Order 7/15/19.) On September 22, 2021, the Court lifted the stay noting that the petition to reopen the probate matter had been denied on September 21, 2021. (Minute Order 9/22/21.)

On October 25, 2021, the Court granted Zangara’s motion for leave to file a First Amended Complaint which was filed the same day. (Order 10/25/21.) On December 2, 2021, Default was entered against Payer.

On January 21, 2022, pursuant to the parties’ stipulation, the Court vacated the default of Payer, and the Court permitted Zangara to file a Second Amended Complaint. (Minute Order 1/21/22.) On January 25, 2022, Zangara filed the operative Second Amended Complaint (“SAC”). The SAC asserts causes of action for (1) Judicial Dissolution of Payer Family LLC, (2) Breach of Fiduciary Duty, (3) Constructive Fraud, and (4) Fraud.

The SAC alleges that Zangara inherited his father’s fifty percent interest in Payer Family LLC through interstate secession on January 2, 2007. (SAC 5-14.) Payer owns the other fifty percent interest in Payer Family LLC. (SAC 8.) The only asset of Payer Family LLC is real property at 905 Dickson St., Marina Del Rey, CA (“Subject Property”). (SAC 9.) Zangara alleges that Payer breached his fiduciary duties by occupying the Subject Property without paying rent, preventing Zangara from access to the property, and failing to comply with terms of the Operating Agreement regarding the dissolution of Payer Family LLC, failing to file taxes for the Payer Family LLC, and failing to pay property taxes on the Subject Property. (SAC 15-21.) In addition, the SAC alleges that Payer secretly attempted to sell the Subject Property without consent for under market value. (SAC 22-32.)

On April 8, 2022, Plaintiff dismissed the third and fourth causes of action for constructive fraud and fraud. On July 19, 2022, the Court granted Zangara’s motion for summary adjudication as to the first cause of action for judicial dissolution of the Payer Family LLC and as to the existence of a fiduciary duty owed by Payer to Zangara. (Order 7/19/22.)

On March 10, 2022, Q5778 Group, LLC (“Buyer”) filed the related action – 22SMCV00340 (“Related Action”) – against the Payer Family LLC to enforce the sale of the Subject Property. On April 22, 2022, the Court found that the instant action was related to the Related Action. (Minute Order 4/22/22.)

On August 8, 2022, the parties in the instant action filed a stipulation – which the Court granted – under which the proceeds of the sale of the Subject Property would be deposited with the Court and distributed pursuant to the Court’s orders in the instant action. The stipulation noted that the parties had settled the Related Action on July 18, 2022, and under the settlement, the Subject Property would be sold to Buyer.

On August 29, 2022, Zangara filed the instant motion to enforce the settlement agreement in the Related Action and served the motion on all parties in both the instant action (****4506) as well as the related action (22SMCV00340). On August 31, 2022, the Court granted Zangara’s ex parte application to advance the instant hearing to enforce the settlement agreement and advanced the instant hearing to September 26, 2022. (Minute Order 8/31/22.) On September 2, 2022, Zangara refiled the instant motion to enforce the settlement agreement. On September 6, 2022, Payer stated that he was unsure if he received notice of the instant motion and was served in open court with the instant motion.

On September 19, 2022, in the Related Action, Buyer filed a notice of settlement of the entire case. No opposition or reply has been filed to the instant motion to enforce settlement.

Legal Standard

Code of Civil Procedure section 664.6 provides that “[i]f parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement.” In ruling on a motion to enter judgment the trial court acts as a trier of fact. It must determine whether the parties entered into a valid and binding settlement. To do so it may receive oral testimony in addition to declarations. (Kohn v. Jaymar-Ruby, Inc. (1994) 23 Cal.App.4th 1530, 1533.) However, “the power of the trial court under section 664.6 ‘is extremely limited.’” (Howeth v. Coffelt (2017) 18 Cal.App.5th 126, 134.)

Discussion

By way of the instant motion, Zangara seeks an order to sell the Subject Property and to require Payer to vacate and deliver possession of the property to Buyer upon the close of escrow of the sale of the Subject Property.

On October 8, 2021, without Zangara’s knowledge or consent, Payer entered into a California Residential Purchase Agreement and Joint Escrow Instructions (“RPA”) to sell the Subject Property on behalf of Payer Family, LLC to Buyer. (Zangara Decl. 4, Exh. A.) On March 9, 2022, Buyer filed the Related Action seeking to enforce the sale of the Subject Property pursuant to the RPA. (Zangara Decl. 5.) On July 18, 2022, Buyer, Payer Family LLC, Zangara, and Payer entered into a settlement agreement with Zangara and Payer signing in their capacity as the members of the Payer Family LLC and in their individual capacity. (Zangara Decl. 6, Exh. B.) The settlement agreement provides that Payer Family LLC will sell the Subject Property pursuant to the terms of the RPA with escrow closing on or before July 29, 2022. (Zangara Decl., Exh. B at 1(a).) Further, pursuant to the settlement agreement, “[Payer] expressly authorizes [Zangara], and [Zangara] shall have the authority, to execute on [Payer Family LLC]'s behalf, without the need for [Payer]'s signature, all papers necessary to sell the [Subject] Property to Buyer, including (but not limited to) escrow instructions, amendments, and documents of title.” (Zangara Decl. 7, Exh. B at 1(g).)

On August 21, 2022, Zangara deposited the grant deed transferring the Subject Property to Buyer to the escrow company. (Zangara Decl. 8, Exh. C.) The escrow company advised Zangara that the title company required confirmation that the Payer Family LLC is authorized to sell the Subject Property under the settlement agreement. (Zangara Decl. 9.) Zangara executed and deposited with the escrow company a resolution of the Payer Family LLC confirming that Payer and Zangara were the only members and that the Payer Family LLC was authorized to sell the Subject Property pursuant to the terms of the settlement agreement. (Zangara Decl. 9, Exh. D.) Zangara also mailed and personally delivered the resolution to Payer. However, Payer has refused to sign the resolution. (Zangara Decl. 10, Exh. E.) “Because Mr. Payer refuses to sign the resolution confirming that the [Payer Family LLC] is authorized to sell the [Subject] Property under the Settlement Agreement, the escrow and title company have refused to close the transaction unless or until the [Payer Family LLC] provides confirmation that it is authorized to sell the [Subject] Property.” (Zangara Decl. 11.) The escrow and title company have advised the Payer Family LLC that the sole issue preventing close of escrow is the confirmation that the Payer Family LLC is authorized to sell the Subject Property. (Zangara Decl. 12.)

In addition, Payer is still occupying the Subject Property. (Zangara Decl. 15.) Pursuant to the RPA which is expressly incorporated into the Settlement Agreement, the Payer Family LLC, Zangara, and Payer are required to provide possession of the Subject Property when the grant deed is recorded at the close of escrow. (Zangara Decl., Exh. A at 9(b), 30(d).)

Here, the parties – Zangara, Payer, and the Payer Family LLC – have agreed to sell the Subject Property to Buyer under the terms of the settlement agreement. Accordingly, pursuant to Code of Civil Procedure section 664.6, the Payer Family, LLC is ordered to sell the Subject Property pursuant to the settlement agreement.[1] Further, pursuant to the settlement agreement, Payer Family LLC and Payer are to vacate the property upon close of the escrow of the property.

CONCLUSION AND ORDER

Based on the foregoing, Plaintiff Christopher Zangara-Payer’s motion to enforce settlement pursuant to Code of Civil Procedure section 664.6 is GRANTED.

Based on the evidence presented, the Court also finds that apart from the settlement agreement, the Payer Family LLC is authorized to sell the property. The Payer Family LLC is ordered to sell 905 Dickson Street, Marina Del Rey, California 90292 pursuant to the Settlement Agreement.

Pursuant to the Settlement Agreement, Payer Family LLC and David Payer are ordered to vacate and deliver possession of 905 Dickson Street, Marina Del Rey, California 90292 upon close of escrow.

Moving Party is to give notice and file proof of service of such.

DATED: September 26, 2022

Elaine Lu

Judge of the Superior Court

Case Number: ****4506 Hearing Date: April 14, 2022 Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Background

On November 22, 2017, plaintiff Christopher Zangara-Payer (“Plaintiff”) filed the Complaint in this action against his uncle, defendant David Payer (“Defendant”) to seek the dissolution of the Nominal Defendant, Payer Family, LLC.

On February 2, 2018, Defendant filed a Cross-Complaint against Plaintiff and Payer Family LLC for (1) Forgery, (2) Lack of Intent/Mistake, (3) Quiet Title, (4) Constructive Trust, (5) Accounting, and (6) Restitution and Offset. Plaintiff/Cross-Defendant Christopher Zangara-Payer filed a demurrer to the Cross-Complaint, which the court sustained in its entirety without leave to amend on June 6, 2018. (Minute Order 6/6/18.) On July 12, 2019, Defendant dismissed the Cross-Complaint without prejudice as to the remaining defendant Payer Family LLC.

On June 11, 2019, Plaintiff filed a motion for terminating sanctions, originally set for November 27, 2019.

On July 15, 2019, the Court stayed the instant action pending Defendant’s petition to reopen the probate matter. (Minute Order 7/15/19.) On September 22, 2021, the Court lifted the stay noting that the petition to reopen the probate matter had been denied on September 21, 2021 and set the instant motion for terminating sanctions for January 10, 2022. (Minute Order 9/22/21.)

On October 25, 2021, the Court granted Plaintiff’s motion for leave to file a First Amended Complaint (“FAC”) which was filed the same day. (Order 10/25/21.) On December 2, 2021, Default was entered against Defendant.

On January 21, 2022, pursuant to the parties’ stipulation, the Court vacated the default and Plaintiff was permitted to file a Second Amended Complaint. (Minute Order 1/21/22.) On January 25, 2022, Plaintiff filed the operative Second Amended Complaint (“SAC”). The SAC asserts causes of action for (1) Judicial Dissolution of Payer Family LLC, (2) Breach of Fiduciary Duty, (3) Constructive Fraud, and (4) Fraud.[1]

The SAC alleges that Plaintiff inherited his father’s fifty percent interest in Payer Family LLC through interstate secession on January 2, 2007. (SAC 5-14.) Defendant owns the other fifty percent interest in Payer Family LLC. (SAC 8.) The only asset of Payer Family LLC is real property at 905 Dickson St., Marina Del Rey, CA (“Subject Property”). (SAC 9.) Plaintiff alleges that Defendant breached his fiduciary duties by occupying the Subject Property without paying rent, preventing Plaintiff from access to the property, and by failing to comply with terms in the Operating Agreement regarding the dissolution of Payer Family LLC, failing to file taxes for the Payer Family LLC, and failing to pay property taxes on the Subject Property. (SAC 15-21.) In addition, the SAC alleges that Defendant secretly attempted to sell the Subject Property without consent for under market value. (SAC 22-32.)

On March 16, 2022, Plaintiff filed the instant motion: (1) to compel Defendant’s responses to Requests for Production, Set Two (“RPDs”), Special Interrogatories, Set Two (“SROGs”), Form Interrogatories, Set Two (“FROGs”), (2) to deem the Request for Admission (“RFAs”) admitted, and (3) to compel the deposition of Defendant. On April 7, 2022, Plaintiff filed a reply. No opposition has been filed.

Time to Respond as to the Written Discovery Requests

Under Code of Civil Procedure section 2033.250 subdivision (a), a party must respond to requests for admission within 30 days of service. Under Code of Civil Procedure section 2030.260 subdivision (a), a party must respond to interrogatories within 30 days of service. Under Code of Civil Procedure section 2031.260 subdivision (a), a party must respond to requests for production of documents within 30 days of service. However, these time limits are extended if served by mail, overnight delivery, fax, or electronically. (See CCP 1010.6(a)(4), 1013.) Failure to timely respond waives all objections, including privilege or on the protection of work product. (See CCP 2031.300(a); See CCP 2033.280(a); see also CCP 2030.290(a).)

Here, Plaintiff served the FROGs, SROGS, RPDs, and RFAs (collectively “Written Discovery Requests”) at issue on February 4, 2022 by Federal Express and electronic service. (3/16/22 Godwin Decl. 2-3, Exhs. A-D.) As Plaintiff effected by overnight mail, Defendant had until March 8, 2021 – 32 days after service – to timely respond to the Written Discovery Requests. However, Defendant failed to provide any response at all to the Written Discovery Requests. Nor did Defendant request an extension. (3/16/22 Godwin Decl. 5-6.)

As Defendant has failed to timely respond to the Written Discovery Requests, all objections are waived.

Motions to Compel Written Discovery Responses to SROGs, FROGs, and RPDs

As Defendant has failed to timely respond to the SROGs, FROGS, and RPDs, Plaintiff’s motion to compel responses to SROGs, FROGS, and RPDs are granted pursuant to Code of Civil Procedure sections 2030.290 and 2031.300. Defendant David Payer is ordered to serve verified responses to Plaintiff Christopher Zangara-Payer Form Interrogatories, Set Two; Special Interrogatories, Set Two; and Request for Production of Documents, Set Two; without objections, within thirty (30) days of notice of this order.

Requests for Admission

Where there has been no timely response to a request for admissions under Code of Civil Procedure section 2033.010, the propounding 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. (CCP 2033.280(b).) The party who has failed to respond waives any objections to the demand, unless the court grants that party relief from the waiver, upon a showing (1) that the party has subsequently served a substantially compliant response, and (2) that the party’s failure to respond was the result of mistake, inadvertence, or excusable neglect. (CCP 2033.280(a)(1)-(2).) The court “shall” grant a motion to deem admitted requests for admissions, “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).)

As Defendant has not responded to the RFAs, Plaintiff’s motion for an order deeming the Request for Admissions admitted is GRANTED pursuant to Code of Civil Procedure section 2033.280. Defendant David Payer is deemed to have admitted the truth of all matters specified in Plaintiff Christopher Zangara-Payer’s Requests for Admission, Set Two as of this date.

Motion to Compel Deposition

Legal Standard

“Any party may obtain discovery . . . by taking in California the oral deposition of any person, including any party to the action. The person deposed may be a natural person, an organization such as a public or private corporation, a partnership, an association, or a governmental agency.” (CCP 2025.010.)

Code of Civil Procedure 2025.450(a) provides: “If, after service of a deposition notice, a party to the action . . . , without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document . . . described in the deposition notice.”

Code of Civil Procedure 2025.450(b) provides: “A motion under subdivision (a) shall comply with both of the following:

1. The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

1. The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”

Code of Civil Procedure 2025.450(c) provides, “(1) If a motion under subdivision (a) is granted, the court shall impose a monetary sanction . . . in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, 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.”

Under Code of Civil Procedure 2023.030(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. (CCP 2023.010(d).)

Meet and Confer

Code of Civil Procedure 2025.450 requires the motion to be accompanied by a meet and confer declaration under Code of Civil Procedure 2016.040. (CCP 2025.450.) Code of Civil Procedure 2016.040 provides that “[a] meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (CCP 2016.040.) “[W]hen the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (CCP 2025.450(b)(2).)

As discussed in detail below, Plaintiff has adequately met and conferred. (3/16/21 Godwin Decl. 12, Exh. I.)

Discussion

On June 7, 2019, the parties stipulated, and the Court ordered that Defendant was to appear for a deposition on June 10, 2019 at 10:00 am. (Stipulation 6/7/19; Minute Order 6/7/19; 3/16/22 Godwin Decl. 7, Exh. F.) On June 10, 2019, Defendant appeared for the deposition. (3/16/22 Godwin Decl. 8, Exh. G [Transcript of the June 10, 2019 Deposition of Defendant].) As previously noted by the Court, the deposition record indicates that Defendant did appear for the deposition, refused to answer a single question, and then left due stating that he was experiencing medical issues possibly with his heart. (3/16/22 Godwin Decl. 8, Exh. G; see also Order 1/10/22.) The deposition record clearly indicates that the deposition only took place for approximately 20-30 minutes. (3/16/22 Godwin Decl. 8, Ex. G.) Thus, it is clear that the deposition was incomplete, and there is at a minimum approximately six and a half hours left of deposition testimony that Plaintiff is entitled to. (CCP 2025.290(a).)

After the stay was lifted, and Defendant’s default was vacated, (Minute Order 1/21/22), Plaintiff served a deposition notice on Defendant on February 4, 2022 by express mail and by electronic service for a deposition set for February 24, 2022. (3/16/22 Godwin Decl. 11, Exh. H.) Defendant failed to object or move for a protective order and did not appear for the Ferbuary 24, 2022 deposition. (3/16/22 Godwin Decl. 11.) On March 7, 2022, Plaintiff sent a meet and confer letter to Defendant seeking dates for the deposition. (3/16/22 Godwin Decl. 12, Exh. I.) In addition, Plaintiff spoke with Defendant on the phone on March 10 and 11, 2022 about whether Defendant would agree on a date for a deposition. (3/16/22 Godwin Decl. 12.) However, Defendant declined to provide any date for a deposition. (3/16/22 Godwin Decl. 12.)

As there is no valid objection to the notice of the deposition, and Defendant failed to appear at the noticed deposition, Plaintiff’s motion to compel the deposition of Defendant is GRANTED.

Sanctions

Plaintiff requests sanctions against Defendant in the total amount of $1,500 for Defendant’s failure to comply with the five discovery requests. (3/16/22 Godwin Decl. 15.) Specifically, Plaintiff seeks compensation for a total of three spent on the instant motion, including time spent on a reply and estimated time at the hearing at $500 per hour. (3/16/22 Godwin Decl. 15.)

“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 [request for production], 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.” (CCP 2031.300(c); CCP 2030.290(c).) Similarly, for a motion to compel deposition, “the court shall impose a monetary sanction . . . in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, 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.” (CCP 2024.450(c).) As to the failure to timely respond to the requests for admission, “[i]t is mandatory that the court impose a monetary sanction …on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion. (CCP 2033.280(c).)

Here, there are no circumstances making the imposition of sanctions unjust. Moreover, the Court finds that Defendant’s failure to timely respond to discovery is an abuse of discovery. (CCP 2023.030(a); Cal. Rules of Court, Rule 3.1348(a).)

Accordingly, Defendant David Payer is ordered to pay monetary sanctions in the amount of $1,500.00 to Plaintiff Christopher Zangara-Payer by and through counsel, within thirty (30) days of notice of this order.

CONCLUSION AND ORDER

Based on the foregoing, Plaintiff Christopher Zangara-Payer’s motion to compel Defendant’s discovery responses, to deem requests for admissions admitted, and to compel deposition is GRANTED.

Defendant David Payer is ordered to serve verified responses to Plaintiff Christopher Zangara-Payer Form Interrogatories, Set Two; Special Interrogatories, Set Two; and Request for Production of Documents, Set Two; without objections, within thirty (30) days of notice of this order.

Defendant David Payer is deemed to have admitted the truth of all matters specified in Plaintiff Christopher Zangara-Payer’s Requests of Admission, Set Two as of this date.

Defendant David Payer is ordered to appear for deposition, remotely or with any other necessary precautions due to the COVID-19 pandemic within fifteen (15) days of notice of this order at a date and time noticed by Plaintiff.

Defendant David Payer is ordered to pay monetary sanctions in the amount of $1,500.00 to Plaintiff Christopher Zangara-Payer by and through counsel, within thirty (30) days of notice of this order.

Moving Party is to give notice and file proof of service of such.

DATED: April 14, 2022

Elaine Lu

Judge of the Superior Court

Case Number: ****4506 Hearing Date: January 10, 2022 Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Background

On November 22, 2017, plaintiff Christopher Zangara-Payer (“Plaintiff”) filed the Complaint in this action against his uncle, defendant David Payer (“Defendant”) to seek the dissolution of the Nominal Defendant, Payer Family, LLC.

On February 2, 2018, Defendant filed a Cross-Complaint against Plaintiff and Payer Family LLC for (1) Forgery, (2) Lack of Intent/Mistake, (3) Quiet Title, (4) Constructive Trust, (5) Accounting, and (6) Restitution and Offset. Plaintiff/Cross-Defendant Christopher Zangara-Payer filed a demurrer to the Cross-Complaint, which the court sustained in its entirety without leave to amend on June 6, 2018. (Minute Order 6/6/18.) On July 12, 2019, Defendant dismissed the Cross-Complaint without prejudice as to the remaining defendant Payer Family LLC.

On June 11, 2019, Plaintiff filed the instant motion for terminating sanctions, originally set for November 27, 2019.

On July 15, 2019, the Court stayed the instant action pending Defendant’s petition to reopen the probate matter. (Minute Order 7/15/19.) On September 22, 2021, the Court lifted the stay noting that the petition to reopen the probate matter had been denied on September 21, 2021 and set the instant motion for terminating sanctions for January 10, 2022. (Minute Order 9/22/21.)

On October 25, 2021, the Court granted Plaintiff’s motion for leave to file a First Amended Complaint (“FAC”) which was filed the same day. (Order 10/25/21.) The FAC asserts two causes of action for (1) Judicial Dissolution Pursuant to Corp. Code 17707.03(a) and (2) Breach of Fiduciary Duty.

The FAC alleges that Plaintiff inherited his father’s fifty percent interest in Payer Family LLC through interstate secession on January 2, 2007. (FAC 5-6.) Defendant owns the other fifty percent interest in Payer Family LLC. (FAC 7.) The only asset of Payer Family LLC is real property at 905 Dickson St., Marina Del Rey, CA (“Subject Property”). (FAC 8.) Plaintiff alleges that Defendant David Payer has breached his fiduciary duties by occupying the Subject Property without paying market rent and by failing to comply with terms in the Operating Agreement regarding the dissolution of Payer Family LLC. (FAC 9-14.)

On December 2, 2021, Default was entered against Defendant. On December 22, 2021, Defendant filed three declarations in opposition to the instant motion for terminating and monetary sanctions. On January 3, 2022, Plaintiff filed a reply and objections to the declarations filed in opposition to the instant motion.

Improper Opposition

As noted above, on December 2, 2021 default was entered against Defendant. “The entry of a default terminates a defendant's rights to take any further affirmative steps in the litigation until either its default is set aside or a default judgment is entered.” (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385.) “A default cuts off the defendant from making any further opposition or objection to the relief which plaintiff's complaint shows he is entitled to demand. A defendant against whom a default is entered ‘in out of court and is not entitled to take any further steps in the cause affecting plaintiff's right of action.’” (Title Ins. & Trust Co. v. King Land & Improvement Co. (1912) 162 Cal. 44, 46.)

As a party in default, Defendant cannot oppose the instant motion. Therefore, the declarations filed in opposition are stricken as improper. (CCP 436(b).)

Legal Standard

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 . . . .” Code of Civil Procedure section 2023.010 provides that “[m]issues of the discovery process include, but are not limited to, the following: . . . (d) Failing to respond or to submit to an authorized method of discovery. . . . (g) Disobeying a court order to provide discovery . . . .”

“The trial court may order a terminating sanction for discovery abuse ‘after considering the totality of the circumstances: [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.’” (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390 [quoting Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246].) “Generally, ‘[a] decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.’” (Los Defensores, supra, 223 Cal.App.4th at p. 390 [citation omitted].)

“Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders.” (Ibid. [citing Lang, supra, 77 Cal.App.4th at pp. 1244-1246); see, e.g., Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617-1622 (terminating sanctions imposed after defendants failed to comply with one court order to produce discovery); Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 491 disapproved on other grounds in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, fn.4, [terminating sanctions imposed against plaintiff for failing to comply with a discovery order and for violating various discovery statutes].)

However, “a penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.” (Brown v. Superior Court (1986) 180 Cal.App.3d 701, 707.)

Pursuant to Code of Civil Procedure section 2023.030(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.

Discussion

By way of this motion, Plaintiff moves for terminating sanctions, issue and evidentiary sanctions, and monetary sanctions of $20,000.00 against Defendant for failing to comply with the court June 7, 2019 order.

The Request for Terminating Sanctions and Issue and Evidentiary Sanctions is Moot

Here, as noted above Defendant is already in default as he failed to timely respond to the FAC. Thus, the request for terminating sanctions – i.e., striking the defendant’s answer and entering default – is moot as there is no answer to strike, and default has already been entered. Similarly, as Defendant is in default, Defendant “confesses all the material facts in the complaint.” (Title Ins. & Trust Co., supra, 162 Cal. at p.46.) Thus, issue or evidentiary sanctions would also be moot as Defendant has already admitted all well pled facts of the complaint. Therefore, only the request for monetary sanctions remains.

Failure to Follow the June 7, 2019 Order

On June 7, 2019, the parties stipulated, and the Court ordered that Defendant was to appear for a deposition on June 10, 2019 at 10:00am. (Stipulation 6/7/19; Minute Order 6/7/19.) On June 10, 2019, Defendant appeared for the deposition. (Godwin Decl. 12, Ex. H [Transcript of the June 10, 2019 Deposition of Defendant].) The deposition record shows that the deposition started at approximately 10:19 am and ended at 10:48am. (Godwin Decl. 12, Ex. H.) Defendant answered multiple questions about his background. (Godwin Decl. 12, Ex. H at pp.16-22.) The deposition record then reflects in relevant part that the following exchange occurred:

Q. Please state current residence.

A. 905 Dickson, D-I-C-K-S-O-N, Street, Marina Del Rey 90292.

Q. What type of residence is that?

A. It's a single-family home.

Q. So it's a house?

A. Yes.

Q. How many bedrooms?

A. Two.

Q. How many stories?

A. Wait a minute. Two stories.

Q. Who owns that house?

A. I do.

Q. The title is in your name?

MR. KENNEDY: Calls for a legal conclusion. Argument. I think we kind of know the legal issue here is there is an operating agreement –

MR. GODWIN: I'm entitled to his answer.

MR. KENNEDY: You're asking whose title is on the document now?

MR. GODWIN: Please restate the question.

(Record read.)

MR. KENNEDY: Counsel, I want you to observe the sweat around his face, right around his mouth and above his lip. He is the only one sweating in here. I want you to observe that there is nothing he can do to fake that. I want to make sure he is okay.

THE WITNESS: I'm okay.

MR. KENNEDY: But don't sit here and argue with him about this. This is an argumentative question, you know that. If you want him to explain why he owns it, he will give you his best answer.

BY MR. GODWIN: Q. Answer my question, please.

MR. KENNEDY: Go ahead and explain why you believe –

MR. GODWIN: No, no, no. I want you to answer my question, not his. Can you restate the question, please.

(Record read.)

THE WITNESS: I'll take the 5th.

BY MR. GODWIN: Q. You're refusing to answer the question?

A. Under your situation of what you're asking me, yes. Because there's a lot more -- it's

a loaded question. It's a compound question. You know that.

MR. KENNEDY: Well, I will stipulate the title is not in his name right now.

MR. GODWIN: I want to make it clear for the record, the witness is refusing –

MR. KENNEDY: Just tell him. His name is –

MR. GODWIN: I want to make it clear for the record –

MR. KENNEDY: We're going to leave in about five seconds.

MR. GODWIN: Okay, go ahead. I'll see you in court. I want to make it clear for the record the witness has refused to answer the question.

THE WITNESS: Great. I'm glad you did.

MR. KENNEDY: You're arguing with him.

THE WITNESS: Look, I'm feeling sick. I've got to go.

MR. KENNEDY: Let's go. Sorry. You know whose name is on the title. You're going to sit here and argue with him? The man has got a serious condition. Are you going to sit here and argue with him about something stupid like that?

MR. KENNEDY: For the record and for the video, let me just say, I saw my witness sitting here -- are we on the record? I want this video to reflect, and the video will evidence that this witness had, around his face, sweat. He is here. Probably he shouldn't be here. He has done his very best to cooperate. And if you sit here and argue about whether his name is on the title or not, it's inhuman. You were starting to raise your voice, the video will show that. But it's not worth dying over, it's not worth killing somebody over. If you want to go to court and talk to the judge about sanctions and whatever, we'll go in and

MR. GODWIN: Let the record reflect that Mr. Kennedy is purporting to testify on behalf of the witness.

MR. KENNEDY: You're being legal when you should be human. This is a human issue about a man with a serious heart issue.

MR. GODWIN: So do you intend to appear at the ex parte on Wednesday morning? MR. KENNEDY: I'll be there. I'll be there, sir. I wish he could stay. Like I told you, he is going to his doctor right now.

MR. GODWIN: You have no evidence whatsoever at this deposition to substantiate his medical condition, correct?

MR. KENNEDY: Counsel, I didn't bring any, but you know what? And I think the judge may appreciate it. Do you know how hard it is to get a declaration from a doctor? And do you know why? Because when they give a declaration, do you know what happens? Attorneys notice their depositions, so they're reluctant to do it.

MR. GODWIN: Is your witness going to come back?

MR. KENNEDY: No. He is going to his doctor. Have I not said that three times? He is going to his doctor.

MR. GODWIN: You're refusing to bring the witness back?

MR. KENNEDY: He is going to his doctor.

MR. GODWIN: Let the record reflect that Mr. Kennedy is refusing to bring back his witness.

MR. KENNEDY: He is getting his heart checked. He can't come back today. If you want to wait around to see if his doctor releases him, sit here. I'll call you and let you know.

MR. GODWIN: The ex parte has been noticed. You're terminating this deposition improperly.

MR. KENNEDY: Well, I'm sorry. I couldn't control my client almost dying. If l had some ability to control that –

MR. GODWIN: I'm going to be seeking issue, evidence and terminating sanctions.

(Godwin Decl. 12, Ex. H at pp.22-28.)

As noted in the deposition record, Defendant did appear for the deposition, appears to have refused to answer a single question, and appears to have left due as he was experiencing medical issues possibly with his heart.[1] While the Defendant may have indicated he was “okay” the descriptions given on the record of how Defendant looked indicate otherwise. Moreover, Plaintiff fails to show any evidence of any attempt to further continue the deposition. Further, Plaintiff fails to present any evidence that Defendant was faking a medical emergency to get out of the deposition. Thus, the record shows that Defendant did appear for the deposition and had to leave due to a medical emergency. Absent further evidence, this conduct does not warrant sanctions.

CONCLUSION AND ORDER

Based on the foregoing, Plaintiff Christopher Zangara-Payer’s motion for terminating and issue and evidentiary sanctions is DENIED as MOOT.

Plaintiff’s request for monetary sanctions is DENIED.

Moving Party is ordered to provide notice of this order and file proof of service of such.

DATED: January 10, 2022

Elaine Lu

Judge of the Superior Court

Case Number: ****4506    Hearing Date: January 10, 2020    Dept: 26

Background

Defense counsel, Raphael A. Rosemblat (“Counsel”), moves to be relieved as counsel for Defendant David Payer (“Client”). Counsel initially filed a motion to be relieved as counsel on December 2, 2019. On December 4, 2019, Counsel filed an amended motion to be relieved as counsel with a new proof of service.

The MC-052 form states that Counsel served Client via mail at Client’s last known mailing address, which Counsel states he has confirmed as current within 30 days of the motion by telephone.

Counsel states that there has been a break down in the attorney-client relationship such that Counsel can no longer represent Client, specifically, that communications have broken down between Client and Counsel.

The proof of service indicates that Counsel has served the moving papers on opposing counsel (Thomas Godwin) and Client (David Payer). However, Client is currently represented not only by Moving Counsel (Raphael A. Rosemblat) but also by J. Grant Kennedy, who associated in as counsel on May 29, 2019. Since the notice of association of counsel filed on May 29, 2019, Mr. Kennedy has neither filed a substitution of counsel nor moved to be relieved. Therefore, Mr. Kennedy remains counsel of record for David Payer. As such, Moving Counsel (Mr. Rosemblat) should have provided Mr. Kennedy with notice of the instant motion to be relieved.

Counsel is ordered to appear at the hearing and submit either proof of timely service of the moving papers on J. Grant Kennedy or other evidence of timely notice being given to J. Grant Kennedy of the instant motion. Failure to provide such evidence will result in a denial without prejudice of the instant motion to be relieved.

Counsel is also ordered to appear at the hearing and submit a corrected proposed order on form MC-053. The proposed order lodged with the Court has not been properly completed. Counsel must electronically submit a revised proposed before the hearing on this motion and bring a hard copy of the revised proposed to the hearing.

The proposed order must identify all upcoming hearings and list the address of the Court in all items. The Court’s records show the following upcoming hearings, which must all be listed in the revised proposed order:

• In item 8 (additional hearings):

  • “Hearing on Motion to Continue Trial, reserved for January 31, 2020 at 8:30 am at 111 N. Hill St., Dept. 26, L.A., CA 90012”

  • “Hearing on Plaintiff Christopher Zangara-Payer’s Motion for Sanctions against David Payer, set for April 23, 2020 at 8:30 am at 111 N. Hill St., Dept. 26, L.A., CA 90012”

• In Item 13: “Moving Counsel is ordered to serve all parties, including Client (David Payer), J. Grant Kennedy, and opposing Counsel (Thomas Godwin), with a copy of this signed order and file proof of service of such within three days. This order does not take effect until Moving Counsel files such proof of service. J. Grant Kennedy remains counsel of record for Defendant David Payer unless and until Kennedy files a substitution of counsel or successfully moves to be relieved.”

  Counsel is responsible for determining if there are any other hearings scheduled or due dates for discovery for this case, including any motions hearings, which must all be listed in the proposed order. For each hearing, Counsel must state the date, time, and location of the hearing (“111 N. Hill St., Dept. 26, L.A., CA 90012”). For each due date for discovery, Counsel must identify the nature of the discovery responses that are outstanding, the due date, and the address where verified responses must be sent.

  Provided that Counsel presents the supplemental evidence and corrected order described above at or before the hearing on this motion, the motion to be relieved as counsel will be granted. Otherwise, the motions will be denied without prejudice.

  Counsel should note that after the orders are signed, the orders will only become effective upon the filing of a proof of service of a signed copy of each order on Client (David Payer), J. Grant Kennedy, and opposing Counsel (Thomas Godwin). Counsel will remain the attorney of record until Counsel files with the Court proof of service of the signed order. Counsel will be ordered to serve a copy of the signed orders (MC-053) on Client (David Payer), J. Grant Kennedy, and opposing Counsel (Thomas Godwin) within three days.

Case Number: ****4506    Hearing Date: November 27, 2019    Dept: 26

MINUTE ORDER ISSUED 11/21/19:

On July 15, 2019, the Court stayed this action in its entirety pending a petition to reopen probate matter BP09946 (In re: Estate of Robin E. Payer). At the status conference on October 17, 2019, the parties advised that a trial setting conference in the probate matter was set for November 7, 2019. Per Plaintiff’s request, the Court continued the Status Conference re probate matter to January 15, 2020 at 8:30 am. Based on the foregoing, the stay of the entire case is still in effect because the probate matter has not been resolved.

Prior to the stay, the parties filed and reserved several motions on the Court Reservation System (CRS), including a motion for sanctions set to be heard on 11/27/19, a motion to bifurcate reserved for hearing on 12/20/19, and a motion to continue trial set for 1/31/20. None of these motions will be heard until after the probate case has been resolved, and the stay in this case has been lifted. Therefore, the Court directs each moving party to reschedule its motion(s) on CRS to a date after which the parties anticipate a ruling from the Probate Court resolving the Probate Matter. After rescheduling the motion hearing reservation(s) on CRS, each moving party must immediately file and service notice of the new (continued) hearing date(s). If any moving party fails to reschedule its motion(s) on CRS prior to the current motion hearing date reserved on CRS, the Court will take the motion off calendar on the current hearing date, and the moving party will have to make a new CRS reservation and re-file moving papers for each such motion to be heard on a new CRS reservation date after the stay is lifted.

For example, as to Plaintiff’s motion for sanctions currently set for November 27, 2019, Plaintiff should, prior to November 27, 2019, reschedule the motion on CRS to a date after which the parties anticipate a ruling from the Probate Court and file, and Plaintiff should serve notice of the new hearing date. If by 8:30 am on 11/27/19 Plaintiff has failed to reschedule his motion for sanctions on CRS to a date after which the parties anticipate a ruling from the Probate Court, then the Court will take Plaintiff’s motion for sanctions off calendar on 11/27/19, and Plaintiff will have to make a new CRS reservation and re-file moving papers for his motion for sanctions.

The Court notes that one of the parties reserved a motion to continue trial for January 31, 2020, but that motion is moot as the trial date has been vacated. Therefore, the CRS reservation for the motion to continue trial set for January 31, 2020 is hereby cancelled.

The Court Clerk is to give notice to all parties.