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This case was last updated from Los Angeles County Superior Courts on 05/31/2019 at 00:13:06 (UTC).

SHIRLEY YOUNG ET AL VS MARK GABAY ET AL

Case Summary

On 05/15/2017 SHIRLEY YOUNG filed a Personal Injury - Other Personal Injury lawsuit against MARK GABAY. 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:

    ****1305

  • Filing Date:

    05/15/2017

  • 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

Plaintiffs and Petitioners

YOUNG FRANK

ESTATE OF ERIC YOUNG

YOUNG SHIRLEY

Defendants and Respondents

M GABAY CONSTRUCTION AND DEVELOPMENT CORP

GABAY ENTERPRISES INC

DOES 1 TO 100

GABAY ARMAN

GABAY MARK

CHARLES COMPANY

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

SHTOFMAN ROBERT SCOTT ESQ.

Defendant Attorney

WILLIAMS RICHARD MARTIN

Other Attorneys

SHTOFMAN ROBERT SCOTT

 

Court Documents

DEFENDANTS' ANSWER TO PLAINTIFF'S COMPLAINT

9/13/2018: DEFENDANTS' ANSWER TO PLAINTIFF'S COMPLAINT

Ex Parte Application

10/24/2018: Ex Parte Application

Notice of Motion

2/15/2019: Notice of Motion

Notice of Ruling

2/21/2019: Notice of Ruling

Proof of Service by Mail

2/22/2019: Proof of Service by Mail

Proof of Service by Mail

4/9/2019: Proof of Service by Mail

Motion to Deem RFA"s Admitted

4/9/2019: Motion to Deem RFA"s Admitted

Motion re:

4/12/2019: Motion re:

Proof of Service by Mail

4/12/2019: Proof of Service by Mail

Opposition

4/16/2019: Opposition

Notice of Ruling

4/17/2019: Notice of Ruling

Ex Parte Application

4/17/2019: Ex Parte Application

Minute Order

4/17/2019: Minute Order

Notice

4/22/2019: Notice

Minute Order

5/7/2019: Minute Order

Notice

5/8/2019: Notice

FIRST AMENDED COMPLAINT FOR: 1. WRONGFUL DEATH; 2. SURVIVAL ACTION 3. LABOR CODE SECTION 3706; ETC

7/9/2018: FIRST AMENDED COMPLAINT FOR: 1. WRONGFUL DEATH; 2. SURVIVAL ACTION 3. LABOR CODE SECTION 3706; ETC

SUMMONS

5/15/2017: SUMMONS

11 More Documents Available

 

Docket Entries

  • 05/21/2019
  • at 08:30 AM in Department 4A, Christopher K. Lui, Presiding; Jury Trial - Not Held - Advanced and Continued - by Court

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  • 05/08/2019
  • Notice ( of Ruling); Filed by Mark Gabay (Defendant); Arman Gabay (Defendant); Charles Company (Defendant)

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  • 05/07/2019
  • at 10:00 AM in Department 4A, Christopher K. Lui, Presiding; Final Status Conference - Not Held - Advanced and Continued - by Court

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  • 05/07/2019
  • at 1:30 PM in Department 4A, Christopher K. Lui, Presiding; Hearing on Motion to Compel Discovery (not "Further Discovery") - Held

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  • 05/07/2019
  • Minute Order ( (Hearing on Motion to Compel Discovery (not "Further Discovery"))); Filed by Clerk

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  • 05/01/2019
  • at 1:30 PM in Department 4A, Christopher K. Lui, Presiding; Hearing on Motion to Compel Discovery (not "Further Discovery") - Held - Continued

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  • 05/01/2019
  • Minute Order ( (Hearing on Motion of Defendants Mark Gabay, Arman Gabay and C...)); Filed by Clerk

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  • 04/22/2019
  • Notice (Notice of Non Opposition to Motion to Compel Plaintiffs' response to Interrogatories & Request for Production of Documents; Request for Monetary Sanctions against Plaintiffs); Filed by Mark Gabay (Defendant); Arman Gabay (Defendant); Charles Company (Defendant)

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  • 04/19/2019
  • at 1:30 PM in Department 4A, Christopher K. Lui, Presiding; Hearing on Motion to Compel Discovery (not "Further Discovery") - Not Held - Advanced and Continued - by Court

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  • 04/18/2019
  • at 1:30 PM in Department 4A, Christopher K. Lui, Presiding; Hearing on Motion for Summary Judgment

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18 More Docket Entries
  • 10/24/2018
  • at 08:30 AM in Department 4; Ex-Parte Proceedings - Held - Motion Granted

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  • 10/24/2018
  • Ex Parte Application (to continue the final status conference, trial date and all related discovery); Filed by Robert Scott Shtofman (Attorney)

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  • 10/24/2018
  • Minute Order ((Ex-Parte application to continue the Final Status Conference,...)); Filed by Clerk

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  • 09/13/2018
  • Answer; Filed by Mark Gabay (Defendant); Arman Gabay (Defendant); Charles Company (Defendant)

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  • 09/13/2018
  • DEFENDANTS' ANSWER TO PLAINTIFF'S COMPLAINT

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  • 07/09/2018
  • FIRST AMENDED COMPLAINT FOR: 1. WRONGFUL DEATH; 2. SURVIVAL ACTION 3. LABOR CODE SECTION 3706; ETC

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  • 07/09/2018
  • First Amended Complaint; Filed by Shirley Young (Plaintiff); Frank Young (Plaintiff); Estate of Eric Young (Plaintiff)

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  • 05/15/2017
  • Complaint; Filed by Shirley Young (Plaintiff); Frank Young (Plaintiff); Estate of Eric Young (Plaintiff)

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  • 05/15/2017
  • COMPLAINT FOR: 1. NEGLIGENCE; ETC

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  • 05/15/2017
  • SUMMONS

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Tentative Rulings

Case Number: BC661305    Hearing Date: May 4, 2021    Dept: O

Case Name: Young, et al. v. Gabay, et al.

Case No.: BC661305

Complaint Filed: 5-15-17

Hearing Date: 5-4-21

Discovery C/O: 9-3-19

Calendar No.: 10

Discover Motion C/O: 8-19-19

POS: OK

Trial Date: None

SUBJECT: MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT   

MOVING PARTY:  Specially Appearing Defendant Natalie Gabay

RESP. PARTY: Plaintiffs Shirley Young, Frank Young and Estate of Eric Young  

TENTATIVE RULING

Defendant Natalie Gabay’s Motion to Quash Service of Summons and Complaint is GRANTED per CCP §418.10 and default is set aside per CCP §473(d).    

 

The service address was not Natalie’s usual business address in July 2020.  On 7-24-20, Plaintiff filed a POS of the FAC on Natalie Gabay.  The 7-24-20 POS attests to substitute service on Natalie pursuant to CCP §415.20(b), which governs substitute service on a natural person.  CCP §415.20(b) only allows for substitute service “[i]f a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served,” and an affidavit attesting to reasonably diligent attempts at personal service is required to establish proper sub-service.  See Evartt v. Sup. Ct. (1979) 89 Cal.App.3d 795, 801 (burden on plaintiff to show reasonable diligence to effect personal service and plaintiff’s failure to submit even “scintilla of evidence” demonstrating such reasonable diligence rendered sub-service ineffective and void). 

According to the Declaration of Diligence executed by Shakeyla Small, she attempted personal service at Natalie Gabay’s usual place of business.  See POS filed on 7-20-24, p. 1, Item 5(b), Dec. of Diligence.  According to Small, she attempted personal service at 9034 W. Sunset Blvd., West Hollywood, CA 90069 five times.  Id.  Small testifies that during her first attempt on 7-14-20, the receptionist indicated Natalie Gabay “was not in at this time.”  Id.  When Small attempted to personally serve Natalie a second time at the same address on 7-16-20, the receptionist indicated that Natalie was away on maternity leave.”  Id.  When Small attempted personal service at the same address a third time on 7-17-20, the receptionist indicated that Natalie “has been out for a few months on maternity leave and probably won’t return until a few months from now.”  Id.  Despite this information, Small attempted personal service one more time at the same address on 7-21-20.  On that same day, Small indicates she successfully sub-served Natalie Gabay at the same address by leaving the documents with the receptionist.

“Ordinarily, two or three attempts at personal service at a proper place should fully satisfy the requirement of reasonable diligence and allow substituted service to be made.”  Ellard v. Conway (2001) 94 Cal.App.4th 540, 545 (emphasis in the original).  A “proper place” includes a defendant’s usual place of business.  See Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750 (substitute service at defendant’s usual place of business proper after three attempts to personally serve defendant at that address; defendant failed to rebut presumption of proper service by demonstrating the address was not his usual place of business). 

A “proper place” also includes a defendant’s former residence.  In Ellard, attempts to serve a defendant at his former residence counted towards the exercise of reasonable diligence under CCP §415.20(b), where the process server did not discover that defendant no longer lived there until he attempted personal service at the address.  See Ellard, supra, 94 Cal.App.4th at 545.  While at the address, the process server noticed the mail was addressed to a different family, and the guard informed him the defendant had moved from the address.  Id.  Thereafter, the process server obtained defendant’s forwarding address from the US Post Office, which was a mailbox, and sub-served defendant at that address.  Id.  The Court found there were reasonable attempts at personal service and sub-service at the forwarding address was proper, because defendant had designated it his forwarding address and therefore his “usual mailing address.”  Id. 

As in Ellard, Small’s first two or three attempts to personally serve at 9034 W. Sunset were reasonable attempts to personally serve Natalie Gabay at a “proper place” under CCP §415.20(b).  Natalie Gabay admits that the service address was her usual place of business until March 2020, and it ceased being her usual place of business from March 2020 through August 2020 due to COVID and maternity leave.  See Dec. of N. Gabay, ¶¶3-5.  The attempts to personally serve her at this address were therefore valid and reasonable, even though the address was not her usual place of business in July 2020.  See Ellard, supra, 94 Cal.App.4th at 545.

However, after the third attempt at personal service on 7-17-20, Small knew that 9034 W. Sunset Blvd. was not Natalie Gabay’s “usual place of business.”  Small admits that the receptionist informed her by the third attempt that Natalie Gabay was on maternity leave and would not be returning to the office for several months.  See 7-20-20 POS, Dec. of Diligence. Natalie Gabay confirms that due to COVID19 and maternity leave, she was not at the office from March 2020 through August 2020.  See Dec. of N. Gabay, ¶¶3-5.  Natalie only began returning to the office on a limited, part time basis in September 2020.  Id. 

Based on the undisputed evidence, 9034 W. Sunset Blvd. was not Natalie Gabay’s usual place of business as of July 2020 and sub-service could not be rendered at that address.  Unlike the plaintiff in Ellard, Plaintiffs did not attempt to obtain a valid business address after learning that 9034 W. Sunset Blvd. was not Natalie’s “usual place of business,” nor did they attempt sub-service at any other proper place under CCP §415.20(b), e.g. dwelling house, usual place of abode, or usual mailing address other than a United States Postal Service post office box. 

Because the address was not a proper address for sub-service, leaving the documents with Ian, the receptionist, was improper under CCP §415.20(b).  Small left the documents with Ian Robinson, the receptionist at 9034 W. Sunset Blvd.  See 7-20-20 POS, Dec. of Diligence. Robinson testifies that he was not authorized to accept service on Natalie’s behalf.  See Dec. of I. Robinson, ¶4.  The fact that Robinson was not authorized to accept service on Natalie’s behalf and the fact that he was the receptionist, not the person in charge of the office, do not affect the validity of service.  Under CCP §415.20(b), Robinson need only have been “apparently in charge” of the office.  Thus, leaving the documents with the manager of a private/commercial post office box facility who knew the defendant is proper under CCP §415.20(b).  See Ellard, supra, 94 Cal.App.4th at 546; National Advertising Co. v. City of Rohnert Park (1984) 160 Cal.App.3d 614, 619 (service on person apparently in charge was sufficient; no showing of agency required); King v. Wilson (1950) 101 Cal.App.2d 242, 244 (service on switchboard operator/receptionist for suite of attorney offices was sufficient, despite attorney's affidavit stating he had not authorized the employee to accept service for him and that she was not his secretary).

However, ultimately, “service must be made upon a person whose ‘relationship with the person to be served makes it more likely than not that they will deliver process to the named party.”  Ellard, supra, 94 Cal.App.4th at 546.  Ian’s only apparent relationship to Natalie was as receptionist at her former usual place of business.  Ian informed Small that Natalie was on maternity leave, and Natalie would not be back in the office for several months.  Based on the undisputed evidence that 9034 W. Sunset Blvd. was not Natalie’s “usual business address,” Ian’s relationship to Natalie did not make it more likely than not that he would deliver the process to Natalie.  Thus, for the alternative reason that Ian was not a proper person to receive substituted service

Timeliness and authority to set aside under CCP §473(d).  Defendant Natalie’s request to set aside the default pursuant to CCP §473(d) based on invalid service is also procedurally proper.  “A default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.  Under section 473, subdivision (d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service.”  Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1200 (citing Ellard). 

A motion to set aside default under CCP §473(d) based on improper service is subject to a two-year deadline.  See Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1121-1122 (motion for relief from judgment based on improper service subject to analogous 2-year deadline under CCP §473.5; process server served wrong person); Trackman v. Kenney (2010) 187 Cal.App,.4th 175, 181 (judgment or order invalid on the face of record may be subject to set aside on motion with no time limit).  Natalie’s motion is timely.

Case Name: Young, et al. v. Gabay, et al.

Case No.: BC661305

Complaint Filed: 5-15-17

Hearing Date: 5-4-21

Discovery C/O: 5-28-21

Calendar No.: 10

Discover Motion C/O: 6-14-21

POS: OK

Trial Date: 6-28-21

SUBJECT: MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

MOVING PARTY:  Defendant Charles Company and System, LLC

RESP. PARTY: Plaintiffs Shirley Young, Frank Young and Estate of Eric Young  

TENTATIVE RULING

Defendant Charles Company and System, LLC’s (“Charles Company”) Motion for Summary Judgment, or in the alternative Summary Adjudication, is DENIED.  The Court’s ruling does not consider Plaintiffs’ opposition papers. 

Charles Company failed to file a POS establishing that it served Plaintiffs with all papers in support of this MSJ at least 75 days before today’s date by personal service or electronic service, or 80 days before today’s date by mail.  Plaintiffs claim they were not served with any of the papers on 2-8-21, and the first time Plaintiffs’ counsel discovered that the Charles Company’s MSJ was on calendar was on 4-15-21, when he was preparing Plaintiffs’ Opposition to the other MSJs by Excel Company, Arman Gabay and Mark Gabay.  See Plaintiffs’ Objection to Defendants Charles Company and System LLC’s Second Motion for Summary Judgment filed on 4-20-21, Dec. of R. Shtofman, ¶2.  Charles Company submitted a “proof of service” from the online filing company.  See Dec. of R. Williams, ¶3, Ex. A.  The “proof of service” is not a proper proof of electronic service under CCP §1013b, which requires an affidavit.  A confirmation receipt from the online service company is insufficient.  Moreover, the confirmation receipt does not list among the documents served the compendium of exhibits.  See Dec. of R. Williams, ¶3, Ex. A. 

Charles Company’s motion is also denied for failure to satisfy its burden as moving party.  Charles Company moves for summary judgment of the entire complaint and summary adjudication of each cause of action based on the element of duty.  The Court already discussed the issue of duty in its 9-30-19 ruling on Charles Company’s prior MSJ.  Even if Charles Company did not owe a duty to protect decedent from unforeseeable third-party criminal acts, Charles Company’s evidence does not negate the existence of its general duty of care as landowner to maintain its premises in a reasonably safe condition and to act reasonably toward the tenant and unknown third persons.  See Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1133 (“private landowners have a duty to maintain their premises in a reasonably safe condition, and that in the case of a landlord, the general duty of maintenance includes the duty to take reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures”); Mora v. Baker Commodities, Inc. (1989) 210 Cal.App.3d 771, 779 (commercial landowner could not totally abrogate its landowner responsibilities merely by signing a lease; commercial landowner out of possession must still exercise due care and act reasonably toward the tenant as well as to unknown third persons).  As previously stated, decedent’s potential status as a trespasser does not absolve Charles Company of a duty of due care.  Id. at 778-779.  The Court cannot find as an issue of law that Charles Company did not owe decedent any duty of care that would support Plaintiffs’ claims. 

Plaintiffs’ discovery responses do not satisfy Charles Company’s burden as moving party seeking summary judgment or adjudication of the individual causes of action or punitive damages claim.  See CCP §437c(f)(1) and (2); Johnson & Johnson v. Supr. Ct. (2011) 192 Cal.App.4th 757, 761.  A defendant may rely upon a plaintiff’s factually devoid responses to establish that plaintiff does not possess and cannot reasonably obtain necessary evidence.  See Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590; Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89 (defendant bank did not meet its burden on summary judgment of wrongful foreclosure by merely arguing that plaintiff lacked evidence to support her claim and only documentary evidence submitted were the loan documents); Gaggero v. Yura (2003) 108 Cal.App.4th 884, 890 (defendant did not establish plaintiff’s lack of evidence or inability to reasonably obtain evidence of plaintiff’s ability and willingness to perform by pointing to plaintiff’s refusal to answer certain questions during deposition on grounds of a meritless privacy objection; such a refusal, regardless of its merit, was neither an admission nor a factually devoid discovery response). Plaintiffs’ responses are not factually devoid, nor do they establish that Plaintiffs cannot reasonably obtain the necessary evidence, particularly given the outstanding discovery. 

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Case Number: BC661305    Hearing Date: July 30, 2020    Dept: O

Case Name: Young, et al. v. Gabay, et al.
Case No.: BC661305 Complaint Filed: 5-15-17
Hearing Date: 7-30-20 (cont’d from 4- 23-20) Discovery C/O: 9-3-19
Calendar No.: 3 Discover Motion C/O: 8-19-19
POS: OK Trial Date: None
SUBJECT: MOTION FOR TERMINATING SANCTIONS    
MOVING PARTY: Defendants Mark Gabay, Arman Gabay, Charles Company and Excel Property Management Services, Inc. 
RESP. PARTY: Plaintiffs Shirley Young, Frank Young and Estate of Eric Young 
TENTATIVE RULING
Defendants Mark Gabay, Arman Gabay, Charles Company and Excel Property Management Services, Inc.’s Motion for Terminating Sanctions is DENIED.
Terminating sanctions should not be imposed lightly and a graduated imposition of
sanctions should be used if possible. See Mileikowsky v. Tenet Healthsystem (2005) 128
Cal.App.4th 262, 279-280 (decision to impose terminating sanctions should not be made lightly
but such sanctions are justified in cases of repeated discovery abuse and evidence that lesser
sanctions will be ineffectual); Thomas v. Luong (1986) 187 Cal.App.3d 76, 81–82; see also
Morgan v. Ransom (1979) 95 Cal.App.3d 664, 669 (incarcerated, indigent, pro per plaintiff's
delay in serving responses insufficient to justify imposition of terminating sanctions where no
prejudice demonstrated). Moreover, discovery sanctions are not intended to punish but to
accomplish discovery. See Newland v. Supr. Ct. (1995) 40 Cal.App.4th 608, 613.
“The discovery statutes…evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.  Although in extreme cases a court has the authority to order a terminating sanction as a first measure, a terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective.”  Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.  
In addition, terminating sanctions are never an appropriate remedy for failure to pay monetary sanctions.  “A monetary sanction is immediately enforceable as a judgment, unless the court rules that it is not. In an appropriate case failure to pay an ordered sanction is punishable as a contempt. And failure to provide the underlying discovery, in violation of a court order that it be provided, is punishable by sanctions affecting the conduct of the litigation, up to and including a terminating sanction. Because of that, an order terminating a plaintiff's lawsuit or striking a defendant's answer and entering its default (in effect, terminating sanctions) solely because of failure to pay the monetary sanction is excessive.”  Newland v. Supr. Ct. (1995) 40 Cal.App.4th 608, 610.  
Defendants seek terminating sanctions against Plaintiffs Shirley Gabay, Frank Young and the Estate of Eric Young based on their failure to comply with the Court’s 5-7-19 compelling response to Defendants’ RFPs and the portion of the Court’s 11-12-19 order requiring payment of monetary sanctions.  Defendants assert Plaintiffs have not served responses to the RFPs, nor have they paid the required sanctions.  
Plaintiffs have not completely abandoned this case.  Plaintiffs successfully defeated Defendants’ MSJ on 9-30-19.  Plaintiffs’ counsel also appeared at the last CMC on 3-5-20, the hearing on Natalie Gabay’s Motion to Quash heard on 12-6-19, the CMC on 11-21-19.  
In addition, Defendants do not claim Plaintiffs failed to serve responses to the Form Interrogatories, as ordered by the Court on 11-12-19.  Defendants only assert Plaintiffs failed to pay the sanctions imposed under the 11-12-19 order.
Finally, Plaintiffs opposed this motion, providing numerous factors excusing their delay in providing responses.  Plaintiffs have also provided the responses in question, and they reaffirmed in their opposition that they are actively litigating this case.  
Under these circumstances, imposition of terminating sanctions would be improper.  Under Newland, supra, terminating sanctions cannot be imposed based on Plaintiffs’ failure to pay the monetary sanctions required under the 11-12-19 Order.  Doing so would be excessive and an abuse of discretion.   
For these reasons, Defendants’ Motion for Terminating Sanction is DENIED. 
Defendant’s request in their Reply for an alternative award of monetary sanctions is denied without prejudice because those sanctions were not requested in the notice of motion. Likewise, Defendants are not precluded from seeking lesser sanctions, e.g. evidentiary or issue sanctions, if appropriate.  
And finally, Counsel for Plaintiff is again admonished by the Court to timely complete all responses due for all discovery and to promptly respond to meet and confer efforts of Defendants’ counsel.
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