REFAAT BESHARA VS GARDENA SENIOR HOUSING, INC; ET AL

Tentative Rulings

Case Number: YC072201    Hearing Date: March 04, 2020    Dept: SWB

Hearing Date: March 4, 2020

Moving Parties: (1) Defendant and cross-complainant Gardena Senior Housing, Inc. and (2) defendant and cross-complainant CSI Support & Development Services

Responding Party: None

(1) Motion for Terminating Sanctions

(2) Motion for Terminating Sanctions

The court considered the moving papers. No opposition was filed.

RULING

The motions are GRANTED. The court orders that plaintiff Refaat Beshara’s First Amended Complaint is DISMISSED as to defendants Gardena Senior Housing, Inc. and CSI Support & Development Services.

BACKGROUND

Plaintiff Gardena Senior Housing, Inc. (“Gardena”) filed a residential unlawful detainer case (No. 17F03019) against Refaat Beshara. Beshara filed an answer in the unlawful detainer case on July 7, 2017, alleging defenses based upon breach of the implied warranty of habitability, estoppel, waiver, or bad faith, defective notice, Gardena’s standing, and retaliation/discrimination.

On August 17, 2017, Beshara’s civil action (YC072201) was consolidated with the UD action.

On February 23, 2018, Beshara filed a FAC for (1) negligence, (2) premises liability, (3) nuisance, (4) negligent failure to provide habitable premises, (5) breach of implied warranty of habitability, (6) breach of the covenant of quiet enjoyment, (7) violation of unfair competition law, (8) intentional infliction of emotional distress, (9) unlawful influence to vacate, (10) invasion of privacy, and (11) elder abuse.

Trial is set for June 10, 2020.

DISCUSSION

Defendants and cross-complainants Gardena Senior Housing, Inc. and CSI Support & Development Services each request terminating sanctions against plaintiff Refaat Beshara as to the First Amended Complaint. Defendants also request monetary sanctions in the amount of $1,460 against plaintiff.

If a party fails to comply with a court order compelling discovery responses or attendance at a deposition, the court may impose monetary, issue, evidence, or terminating sanctions. CCP § 2025.450(h) (depositions); § 2030.290(c) (interrogatories); § 2031.300(c) (demands for production of documents). CCP § 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 . . . .” CCP § 2023.010 provides that “[m]isuses 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, 223 Cal. App. 4th at 390 (citation omitted).

On December 3, 2019, the court ordered plaintiff to serve verified responses to defendant Gardena Senior Housing’s Form Interrogatories, Set Four, Special Interrogatories, Set Three, Supplemental Request for Production of Documents, Set One, and Supplemental Interrogatories, Set One, within thirty days. Plaintiff was also ordered to pay sanctions in the amount of $1,115.

On December 3, 2019, the court ordered plaintiff to serve verified responses to defendant CSI’s Form Interrogatories, Set Two, Special Interrogatories, Set Two, Supplemental Request for Production of Documents Demand, Set One, and Supplemental Interrogatories, Set One, within 30 days. Plaintiff was also ordered to pay sanctions in the amount of $1,115 within 30 days.

Defendants contend that plaintiff has not complied with the court’s orders. On December 20, 2019, defense counsel sent a letter to plaintiff to remind her to respond to the discovery requests. Plaintiff did not respond to the letter. On December 31, 2019, defense counsel sent another letter to plaintiff requesting her to comply with the court’s order. Plaintiff did not serve her responses by the due date on January 2, 2020. On January 6, 2020, defense counsel sent another meet and confer letter inquiring as to the status of the responses. To date, defense counsel has not received responses.

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.

The court finds though that plaintiff has engaged in conduct that is a misuse of the discovery process by disobeying the court’s December 3, 2019 order to serve responses and to produce documents. CCP §§ 2023.010(g), 2023.030. The court thus finds that it is appropriate, and exercises its discretion, to impose terminating sanctions. CCP § 2023.030(d)(1). The court declines to impose additional monetary sanctions against plaintiff. Terminating sanctions are adequate.

The motions are GRANTED. The FAC as to Gardena Senior Housing, Inc. and CSI Support & Development Services is dismissed.

Defendants are ordered to give notice of the ruling.

Case Number: YC072201    Hearing Date: December 03, 2019    Dept: SWB

Hearing Date: December 3, 2019

Moving Parties: Defendants Gardena Senior Housing, Inc. and CSI Support & Development Services

Responding Party: None – No Opposition Filed

Motions to Compel; Requests for Sanctions

The court considered the moving papers.

RULING

Defendant CSI Support & Development Services’ unopposed motions to compel Plaintiff Refaat Beshara to provide responses, without objections, to Form Interrogatories (Set Two), Special Interrogatories (Set Two), Supplemental Document Demand, and Supplemental Interrogatories are granted. Plaintiff shall serve verified responses, without objections, to the discovery requests within 30 days. Defendant’s unopposed requests for sanctions are granted against Plaintiff in the total amount of $1,115.00, payable within 30 days.

Defendant Gardena Senior Housing, Inc.’s unopposed motions to compel Plaintiff to provide responses, without objections, to Form Interrogatories (Set Four), Special Interrogatories (Set Three), Supplemental Document Demand, and Supplemental Interrogatories are granted. Plaintiff shall serve verified responses, without objections, to the discovery requests within 30 days. Defendant’s unopposed requests for sanctions are granted against Plaintiff in the total amount of $1,115.00, payable within 30 days.

BACKGROUND

Plaintiff Refaat Beshara (“Plaintiff”) filed the instant action on July 20, 2017.

The instant action was consolidated with 17F03019 (the UD action).

Plaintiff filed a first amended complaint on February 23, 2018, asserting the following causes of action: (1) negligence; (2) premises liability; (3) nuisance; (4) negligent failure to provide habitable premises; (5) breach of implied warranty of habitability; (6) breach of the covenant of quiet enjoyment; (7) violation of unfair competition law; (8) intentional infliction of emotional distress; (9) unlawful influence to vacate; (10) invasion of privacy; and (11) elder abuse.

The Court sustained Defendant National Church Residences’ (“NCR”) demurrer to the elder abuse cause of action on August 22, 2018. Plaintiff elected not to amend the elder abuse cause of action.

Defendants Gardena Senior Housing, Inc. (“Gardena”) and CSI Support & Development Services (“CSI”) filed an answer to the first amended complaint on September 21, 2018. CSI also filed a cross-complaint, asserting causes of action for indemnity, contribution, and apportionment of fault.

NCR filed an answer to the first amended complaint on September 27, 2018. NCR also filed a cross-complaint, asserting causes of action for implied indemnity, contribution, declaratory relief, and express indemnity.

MJ Housing and Services (“MJ”) filed an answer to NCR’s cross-complaint on October 24, 2018. MJ also filed a cross-complaint, asserting causes of action for total equitable indemnity, comparative indemnity, and declaratory relief.

Gardena and CSI filed an answer to NCR’s cross-complaint on November 15, 2018.

NCR filed an answer to MJ’s cross-complaint on March 12, 2019.

The court granted Gardena’s unopposed motion for summary adjudication of the UD complaint on August 15, 2019. The court also granted NCR’s unopposed motion for summary judgment.

MJ filed a Request for Dismissal on September 4, 2019, dismissing NCR from the cross-complaint.

Trial is set for June 10, 2020.

DISCUSSION

CSI’s Motions & Requests for Sanctions

CSI moves for orders compelling Plaintiff to provide verified responses, without objections, to Form Interrogatories (Set Two), Special Interrogatories (Set Two), Supplemental Document Demand, and Supplemental Interrogatories. CSI also requests sanctions against Plaintiff in the total amount of $4,440.00. (C.C.P. §§2023.010, 2023.030, 2030.290, 2031.300.)

C.C.P. §2030.290 provides, in pertinent part, as follows:

If a party to whom interrogatories are directed fails to serve a timely response, the following rules apply:

(a) , as well as any objection to the interrogatories, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010)…

(b)

(c) ) 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…

C.C.P. §2031.300 provides, in pertinent part, as follows:

If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the following rules shall apply:

(a) )…

(b)

(c) ) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection, copying, testing, or sampling, 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…

CSI is entitled to orders compelling Plaintiff to provide responses, without objections, to Form Interrogatories (Set Two), Special Interrogatories (Set Two), Supplemental Document Demand, and Supplemental Interrogatories. (See C.C.P. §§2030.290(a)-(b) and 2031.300(a)-(b).) CSI served Plaintiff with the discovery requests via mail on June 20, 2019. (MTC-SR2, Declaration of Nelson ¶5; Exhibit A.) (MTC-SDD, Declaration of Nelson ¶5; Exhibit A.) (MTC-SI, Declaration of Nelson ¶5; Exhibit A.) (MTC-FR2, Declaration of Nelson ¶5; Exhibit A.) Plaintiff failed to serve responses to the requests. (MTC-SR2, Declaration of Nelson ¶¶6-10.) (MTC-SDD, Declaration of Nelson ¶¶6-10.) (MTC-SI, Declaration of Nelson ¶¶6-10.) (MTC-FR2, Declaration of Nelson ¶¶6-10.)

Based on the foregoing, CSI’s unopposed motions are granted. Plaintiff shall serve responses, without objections, to Form Interrogatories (Set Two), Special Interrogatories (Set Two), Supplemental Document Demand, and Supplemental Interrogatories within 30 days.

CSI’s unopposed requests for sanctions are granted against Plaintiff in the reduced total amount of $1,115.00 (representing 5 hours of attorney time at $175.00 per hour, plus $240.00 in filing fees). (MTC-SR2, Declaration of Nelson ¶11.) (MTC-SDD, Declaration of Nelson ¶11.) (MTC-SI, Declaration of Nelson ¶11.) (MTC-FR2, Declaration of Nelson ¶11.) (See C.C.P. §§2023.010(d), 2023.030(a), 2030.290(c), 2031.300(c).) Plaintiff shall pay the sanctions within 30 days.

Gardena’s Motions & Requests for Sanctions

Gardena moves for orders compelling Plaintiff to provide verified responses, without objections, to Form Interrogatories (Set Four), Special Interrogatories (Set Three), Supplemental Document Demand, and Supplemental Interrogatories. Gardena also requests sanctions against Plaintiff in the total amount of $4,440.00. (C.C.P. §§2023.010, 2023.030, 2030.290, 2031.300.)

Gardena is entitled to orders compelling Plaintiff to provide responses, without objections, to Form Interrogatories (Set Four), Special Interrogatories (Set Three), Supplemental Document Demand, and Supplemental Interrogatories. (See C.C.P. §§2030.290(a)-(b) and 2031.300(a)-(b).) Gardena served Plaintiff with the discovery requests via mail on June 20, 2019. (MTC-SI, Declaration of Nelson ¶5; Exhibit A.) (MTC-SR3, Declaration of Nelson ¶5; Exhibit A.) (MTC-SDD, Declaration of Nelson ¶5; Exhibit A.) (MTC-FR4, Declaration of Nelson ¶5; Exhibit A.) Plaintiff failed to serve responses to the requests. (MTC-SI, Declaration of Nelson ¶¶6-10.) (MTC-SR3, Declaration of Nelson ¶¶6-10.) (MTC-SDD, Declaration of Nelson ¶¶6-10.) (MTC-FR4, Declaration of Nelson ¶¶6-10.)

Based on the foregoing, Gardena’s unopposed motions are granted. Plaintiff shall serve verified responses, without objections, to Form Interrogatories (Set Four), Special Interrogatories (Set Three), Supplemental Document Demand, and Supplemental Interrogatories within 30 days.

Gardena’s unopposed requests for sanctions are granted against Plaintiff in the reduced total amount of $1,115.00 (representing 5 hours of attorney time at $175.00 per hour, plus $240.00 in filing fees). (MTC-SI, Declaration of Nelson ¶11.) (MTC-SR3, Declaration of Nelson ¶11.) (MTC-SDD, Declaration of Nelson ¶11.) (MTC-FR4, Declaration of Nelson ¶11.) (See C.C.P. §§2023.010(d), 2023.030(a), 2030.290(c), 2031.300(c).) Plaintiff shall pay the sanctions within 30 days.