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This case was last updated from Los Angeles County Superior Courts on 06/08/2019 at 02:51:54 (UTC).

TRAVIS NAIL VS IVAR INVESTMENTS LLC ET AL

Case Summary

On 08/29/2017 TRAVIS NAIL filed a Contract - Other Contract lawsuit against IVAR INVESTMENTS LLC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is DEIRDRE HILL. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4238

  • Filing Date:

    08/29/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

DEIRDRE HILL

 

Party Details

Plaintiff and Petitioner

NAIL TRAVIS

Defendants and Respondents

CHINESE THEATER INVESTMENT LLC

BRAIDI ELIE

BRAIDY ELIE

6356 SECOND FLOOR LLC

BOULEVARD NIGHTLIFE GROUP LLC

IVAR INVESTMENTS LLC

BRAIDI CAROLINE

BRAIDI FREDDY

KUSHNER DONALD

SAMAHA ELIE

KUSHNER SPENCER

DOES 1-100 INCLUSIVE

NEHME MARTIN

BRAIDY FREDDY

BRAIDI FREDDY AKA FREDDY BRAIDY

BRAIDI ELIE AKA ELIE BRAIDY

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

DIBA KASEY ESQ.

DIBA KASEY

Defendant and Respondent Attorneys

RITT TAI THVEDT & HODGES LLP

RITT DONALD JAY

 

Court Documents

SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF, TRAVIS NAIL'S MOTION TO COMPEL DEFENDANTS ELIE BRAIDY, CAROLINE BRAIDY, DONALD KUSHNER, AND SPENCER KUSHNER'S RESPONSES TO REQUESTS FOR ADMISSION, SET ONE

9/20/2018: SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF, TRAVIS NAIL'S MOTION TO COMPEL DEFENDANTS ELIE BRAIDY, CAROLINE BRAIDY, DONALD KUSHNER, AND SPENCER KUSHNER'S RESPONSES TO REQUESTS FOR ADMISSION, SET ONE

SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF, TRAVIS NAIL'S MOTION TO COMPEL DEFENDANTS IVAR INVESTMENT, LLC, BOULEVARD NIGHTLIFE GROUP, LLC, 6356 SECOND FLOOR, LLC, AND CHINESE THEATHER INVESTMENT, LLC

9/20/2018: SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF, TRAVIS NAIL'S MOTION TO COMPEL DEFENDANTS IVAR INVESTMENT, LLC, BOULEVARD NIGHTLIFE GROUP, LLC, 6356 SECOND FLOOR, LLC, AND CHINESE THEATHER INVESTMENT, LLC

Notice of Ruling

10/4/2018: Notice of Ruling

Opposition

11/2/2018: Opposition

Declaration

11/6/2018: Declaration

Declaration

11/28/2018: Declaration

Response

11/29/2018: Response

Reply

12/5/2018: Reply

Request for Judicial Notice

5/29/2019: Request for Judicial Notice

PROOF OF SERVICE OF SUMMONS

3/28/2018: PROOF OF SERVICE OF SUMMONS

Minute Order

3/28/2018: Minute Order

REQUEST FOR ENTRY OF DEFAULT

12/5/2017: REQUEST FOR ENTRY OF DEFAULT

Unknown

12/15/2017: Unknown

PROOF OF SERVICE OF SUMMONS

10/24/2017: PROOF OF SERVICE OF SUMMONS

PROOF OF SERVICE OF SUMMONS

10/24/2017: PROOF OF SERVICE OF SUMMONS

PROOF OF SERVICE OF SUMMONS

10/24/2017: PROOF OF SERVICE OF SUMMONS

DECLARATION OI SUB SERVICE HENRY AGHASSI

10/24/2017: DECLARATION OI SUB SERVICE HENRY AGHASSI

NOTICE OF CASE MANAGEMENT CONFERENCE

9/18/2017: NOTICE OF CASE MANAGEMENT CONFERENCE

80 More Documents Available

 

Docket Entries

  • 06/03/2019
  • Notice (of Errata); Filed by Travis Nail (Plaintiff)

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  • 06/03/2019
  • Reply ( to Opposition to Motion to Compel Defendant 6356 Second Floor, LLC's Response to Request for Production No. 27); Filed by Travis Nail (Plaintiff)

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  • 05/29/2019
  • Separate Statement; Filed by 6356 Second Floor, LLC (Defendant)

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  • 05/29/2019
  • Opposition (to Motion to Compel Further Response to DFP No. 25); Filed by 6356 Second Floor, LLC (Defendant)

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  • 05/06/2019
  • at 08:30 AM in Department 49; Hearing on Ex Parte Application (for an Order to Continue Trial) - Held - Motion Granted

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  • 05/06/2019
  • Notice ( of Continuance of Trial and Related Dates); Filed by Travis Nail (Plaintiff)

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  • 05/06/2019
  • Minute Order ( (Hearing on Ex Parte Application for an Order to Continue Trial)); Filed by Clerk

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  • 05/02/2019
  • Motion for Leave ([Plaintiff's] to File First Amended Complaint); Filed by Travis Nail (Plaintiff)

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  • 04/26/2019
  • Request for Entry of Default / Judgment; Filed by Travis Nail (Plaintiff)

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  • 04/22/2019
  • Motion to Compel Further Discovery Responses; Filed by Travis Nail (Plaintiff)

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142 More Docket Entries
  • 10/24/2017
  • PROOF OF SERVICE OF SUMMONS

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  • 10/24/2017
  • DECLARATION OF SUB SERVICE HENRY AGHASSI

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  • 10/24/2017
  • DECLARATION OF SUB SERVICE HENRY AGHASSI

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  • 09/18/2017
  • OSC-RE Other (Miscellaneous); Filed by Clerk

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  • 09/18/2017
  • Notice of Case Management Conference; Filed by Clerk

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  • 09/18/2017
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 09/18/2017
  • ORDER TO SHOW CAUSE HEARING

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  • 08/29/2017
  • COMPLAINT FOR: (1) BREACH OF CONTRACT ;ETC

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  • 08/29/2017
  • SUMMONS

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  • 08/29/2017
  • Complaint; Filed by Travis Nail (Plaintiff)

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Tentative Rulings

Case Number: BC674238    Hearing Date: April 5, 2021    Dept: 49

Superior Court of California

County of Los Angeles

Travis Nail,

Plaintiff,

Case No.

BC674238

v.

[Tentative] Ruling

Ivar Investments, LLC, et al.,

Defendants.

Hearing Date: April 5, 2021

Department 49, Judge Stuart M. Rice

Moving Party: Plaintiff Travis Nail

Responding Party:      Defendants 6356 Second Floor, LLC and Freddy Braidi

Ruling: Plaintiff’s motion for issue sanctions is granted. It is determined that Freddy Braidi, in his capacity of managing member of 6356 Second Floor, LLC, breached his fiduciary duties to member Plaintiff, Travis Nail and that Plaintiff has been damaged in the amount of $120,000.00, the amount borrowed from Plaintiff.

Plaintiff Travis Nail (“Plaintiff”) moves for an order imposing terminating sanctions, issue or evidentiary sanctions, or monetary sanctions upon Defendant 6356 Second Floor, LLC (“6365”) and Defendant Freddy Braidi (“Braidi”) as the former’s managing member.

On February 9, 2021, the court issued a ruling ordering 6365 to comply with the February 6, 2020 order and produce all documents responsive to Requests for Production 1, 3-11, 13-32, 34-46, and 48-65 without objections within twenty (20) days of the ruling. On that date and by separate order, the court also ordered that Defendant produce Ciego for a deposition to be arranged within thirty (30) days of the order, and explicitly ordered that should Defendant fail to comply with either order by the respective deadlines, issue sanctions by which it is determined that Braidi breached his fiduciary duties to Plaintiff may be imposed, and that Defendant may also face the possibility of terminating sanctions.

In his motion, Plaintiff reiterates what he contends are violations of this court’s orders committed by Defendants since initiation of this case:

1. the failure to produce responses to requests for production in accordance with the court’s February 6, 2020 order;

2. the failure to comply with the court’s February 9, 2021 order reiterating the February 6, 2020 order and requiring production of documents without objections within twenty days;

3. the failure to comply with the court’s February 9, 2021 order requiring the production of Tiara Ciego for deposition within thirty days of the order.

4. the failure to pay various court ordered monetary sanctions; and

5. the failure to partake in court ordered Mandatory Settlement Conferences since December 11, 2018.

Matthew Sichi, counsel for Plaintiff, declares that the day of the February 9, 2021 hearing and on the following day, he sent Defense counsel three emails: “[o]ne email providing available dates for deposition of Ms. Ciego. Another email inquired into availability for the ordered MSC and providing an intake form. The final advising of the outstanding sanctions and asking when those sanctions are expected to be paid.” (Sichi Decl. ¶ 27, Exh. O.) Sichi declares that as of the date of his declaration, March 11, 2021, Defense counsel had not responded to any of the emails.

Sichi also declares that “Defendants have failed to provide supplemental responses to requests for production, set two, as originally ordered by this Court on February 8, 2020, and again on February 9, 2021.” (Id. ¶ 28.) Finally, Sichi declares as to the outstanding monetary sanctions imposed on Defendants which have yet to be paid, and as to Defendants’ failure to engage in a court ordered Mandatory Settlement Conference, or even respond to Plaintiff’s efforts to arrange for one. (Id. ¶¶ 29-38.)

In opposition, Defendants deny or attempt to justify the alleged failures to comply.

First, Defendants assert that a date for the deposition of witness Tiara Ciego has been confirmed: “Ms. Ciego has agreed to appear for deposition on March 31, 2021, or any Wednesday in the following month of April 2021.” (Opp. 1:16-17.) Defendants explain that they were unable to secure an earlier date because Ciego contracted Covid-19 in January 2021 and was unable to commit to a date until she returned to work “after mid-February, 2021.” (Id. 1:21.)

Defendants submit the declaration of Caroline Braidi, who declares that “Ms. Ciego returned to working with Samaha Associates on or about February 15, 2021. Her hours have been reduced to accommodate her health issues related to Covid, and she works only some Mondays and Wednesdays for Samaha Associates.” (C. Braidi Decl. ¶ 5.)

On February 9, 2021, the court ordered that the parties arrange for Ciego’s deposition within thirty days of the order, giving Defendants until March 11, 2021, to produce Ciego and arrange for her deposition. Now, Defendants assert that the earliest Ciego has agreed to be deposed is March 31, 2021, and that earlier depositions were not possible because Ciego contracted covid.

The only evidence submitted of Ciego’s covid-19 diagnosis is Caroline Braidi’s declaration, and said declaration does not justify the timely failure to comply with this court’s order. Caroline Braidi declares that Ciego returned to work on February 15, 2021, leaving twenty-four (24) days to produce her for deposition in compliance with this court’s order. There is no explanation as to why Defendants failed to undertake timely efforts to comply with this court’s order.

Second, Defendants contend that they have not failed to produce any documents Plaintiff was entitled to receive through discovery. However, Defendants merely argue that “Defendants wrongly believed they had timely complied with this portion of the Court’s Order. Defendants’ counsel drafted an email to Plaintiff's counsel on March 23, 2021 which he believed had been delivered to Plaintiff’s counsel, but was, in fact, due to a computer glitch, retained in Defendants’ counsel’s “Drafts” folder, and had not been delivered.” (Opp. 2:15-19.) Defense counsel Warren Hodges declares that it was not until receipt of the present motion that counsel realized that the email had not sent. (Hodges Decl. ¶ 3.)

It is unpersuasive that counsel failed to ensure that the document production was sent to opposing counsel pursuant to a court order which explicitly stated the possibility of terminating sanctions for a failure to comply therewith.

This discovery was ordered to be produced without objections by the court’s February 6, 2020 order. On February 9, 2021, the court granted Defendants another opportunity to fulfill their discovery obligations and declined to impose anything more than monetary sanctions. Now, Defendants failed to send an email, but argue that regardless of said failure, “Defendants do not have any additional documents to produce to Plaintiff responsive to the Second Set of Document Requests.” (Opp. 4:4-5.) Specifically, Defendants argue that “[i]n the (undelivered) email, Mr. Hodges explained that no additional responses were required, except perhaps to one request, No. 6, and no additional documents were to be produced.” (Id. 2:27-3:1.)

  1. General Ledgers in Native Format – RFP No. 1;
  2. Bank Statements for Chase Account Ending in #1208 – RFP No. 3;
  3. Bank Statements for Chase Accounts Ending in #1182 and #1190 – RFP Nos. 4 and 5;
  4. Business Records and Interest in Various Assets – RFP Nos. 6 through 10, 13 through 32, and 34 through 46; and
  5. Documents Reflecting Communications – Requests Nos. 48 through 65.

The court already found good cause for discovery of these documents, and the court can formulate no reason why Defendants have failed to produce such documents for over a year, and now assert that nothing else remains to be produced because “all responsive documents except the ‘native format’ Quickbooks electronic data file requested by Plaintiff in Request No. 1 of the second Set of Document Requests had already been produced by the time of the previous responses.” (Opp. 3:4-7.) The nature of the documents sought appear readily available for Defendants to produce.

Date: April 5, 2021

Honorable Stuart M. Rice

Judge of the Superior Court

Case Number: BC674238    Hearing Date: February 09, 2021    Dept: 49

Superior Court of California

County of Los Angeles

Travis Nail,

Plaintiff,

Case No.

BC674238

v.

[Tentative] Ruling

Ivar Investments, LLC, et al.,

Defendants.

Hearing Date: February 9, 2021

Department 49, Judge Stuart M. Rice

Motion to Compel Deposition

Moving Party: Plaintiff Travis Nail

Responding Party: Defendant 6356 Second Floor, LLC

Ruling: Plaintiff’s motion to compel the deposition of Tiara Ciego is granted. The parties shall arrange for her deposition within thirty (30) days of this order. Sanctions are imposed against Defendant in the amount of $3,300.

Plaintiff Travis Nail (“Plaintiff”) moves for an order compelling the deposition of party affiliated witness Tara Ciego (“Ciego”).

Evidentiary Objections

Plaintiff objects to the declaration of Freddy Braidi, manager of Defendant 6356 Second Floor, LLC (“Defendant”), submitted in support of Defendant’s opposition to this motion and to the concurrently heard motion for sanctions. The objection filing, in its entirety, states that “Plaintiff, Travis Nail submits the following evidentiary objections to the entirety of the Declaration of Freddy Braidy in support of Defendant, 6356 Second Floor, LLC’s Opposition to Motion to Compel Deposition of Party Affiliated Witness, Tiara Ciego as the declaration of Freddy Braidi is unsigned and therefore inadmissible.”

Indeed, as this declaration is unsigned, and therefore unverified, it is not competent evidence and carries no weight in this matter. (Inselberg v. Inselberg (1976) 56 Cal. App. 3d 484, 489.) The objection is sustained.

Discussion

On November 15, 2019, counsel for Plaintiff served two notices of deposition on Defense counsel for a deposition date of December 18, 2019. (Sichi Decl. ¶ 4, Exh. 4.) “The two identified deponents are Defendant 6356 Second Floor, LLC’ s bookkeepers, Tiara Ciego, and Rika, last name unknown, and are intended to seek evidence and testimony necessary to prove Plaintiff’s claim for breach of fiduciary duty.” (Motion 5:20-22.)

On December 17, 2019, Defense counsel sent an email to Plaintiff’s counsel stating that the deponents were not available until January 2020 due to year-end financial reporting. (Sichi Decl. ¶ 5, Exh. B.) The parties rescheduled for January 10, 2020. (Id. ¶ 6, Exh. B.) Per Plaintiff’s counsel’s declaration, on January 9, 2020, counsel for the parties spoke by phone, and Defense counsel agreed to make Ciego available for deposition on January 24, 2020, and informed Plaintiff’s counsel that the second deponent, known only as “Rika,” was no longer affiliated with Defendant. (Id. ¶ 7, Exhs. C, D.)

On January 23, 2020, Defense counsel notified Plaintiff’s counsel that Ciego would not be appearing for deposition. (Id. ¶ 8.)

Pursuant to Code Civ. Proc. § 2025.450(a),

[i]f, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, 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, electronically stored information, or tangible thing 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, electronically stored information, or tangible thing described in the deposition notice.

Plaintiff moves to compel Ciego’s deposition on the basis that she failed to appear despite a duly noticed deposition.

In opposition, Defendant argues that the motion must be denied because “Ciego is not an employee of defendant 6356 Second Floor LLC, or any other defendant, and as such, her deposition cannot be compelled through 6356 LLC or any other entity defendant in this case.” (Opp. 2:18-20.) In the opposition brief, Defendant asserts that Ciego is an employee of Samaha Associates which Defendant employed through 2018 to do its accounting.

Pursuant to Code Civ. Proc. § 2025.280(a), “[t]he service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.” If Ciego is not a party to this action as an employee of Defendant, a deposition notice does not suffice to compel her attendance at deposition. To support this position, Defendant argues that “Ciego is not, and never has been an employee of 6356 LLC. See Declaration of Freddy Braidi attached hereto, at Paragraphs __ through __, and Exhibits A and B thereto.” (Opp. 7:6-8.) As stated above, the declaration is not verified, the citation is incomplete, and therefore any evidence attached thereto is inadmissible as unauthenticated.

Nevertheless, while Exhibit A may reflect payments made to Samaha Associates on Defendant’s Accounting Expenses, such evidence does not reflect that Ciego was an employee of the former. Defendant did not raise this issue at any time leading up to the twice-continued deposition. Warren D. Hodges, defense counsel, declares as follows:

On January 23, 2020, while traveling to meet with Tiara Ciego to prepare her for her deposition which was to take place the following day, I learned that Ms. Ciego was hesitant to be deposed. When I pressed to meet with her to understand her concerns, and it was then explained that Ciego was not actually an employee of 6356 LLC, and we could not require or demand that she appear, I alerted Plaintiff's counsel that there was a problem. Since I was still trying to work around the issue and gain Ms. Ciego’s consent to appear at deposition, I did not inform Plaintiffs’ counsel of the specific issue. Plaintiff's counsel did not further contact me before filing the instant motion to compel Ciego’s deposition.

(Hodges Decl. ¶ 2.)

Considering the foregoing, the only evidence before the court that Ciego is not an employee of Defendant is Hodges’s declaration that it was “explained that Ciego was not actually an employee of 6356 LLC” while he travelled to meet with Ciego to prepare for her deposition. (Id.) Hodges does not specify who explained to him, nor why such information was not known earlier, nor for whom Ciego actually works. While Hodges declares in a signed declaration that “it was explained that Ciego was not actually an employee of 6356 LLC,” he does not declare that she worked for another entity. To clarify, there is no evidence before the court that Ciego works for Samaha Associates, LLC. Ciego’s purported employment with Samaha Associates is a contention which is noted only in the opposition brief, and in the unsigned and unverified declaration of Freddy Braidi.

In reply, Plaintiff argues that “[i]t is not only untenable but purely deceptive that Freddy Braidi, manager of 6356 Second Floor, LLC, claims that Ms. Ciego is unavailable for deposition more than a year after that deposition was noticed because Ms. Ciego is now known to be an employee of a company managed by his mother and of whom his brother is the designated agent for service of process.” (Reply 3:11-14.) Plaintiff also argues that “[s]uch a representation of inability to produce Ms. Ciego is further undercut by the fact that Freddy Braidi, manager of 6356 Second Floor, LLC, represented during his deposition that Ms. Ciego was hired as a bookkeeper for 6356 Second Floor, LLC.” (Reply 3:1-3.) This argument requires reference to evidence which Plaintiff submits with its reply brief. Counsel is reminded that no new evidence is ordinarily to be submitted with a reply. “The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers.” (Jay v. Mahaffey (2013) 218 Cal. App. 4th 1522, 1537.) he decision to consider such evidence remains within the discretion of the trial court. (Id. at 1538.) Here, the evidence pertains to an issue of the motion, and consists of deposition testimony of Defendant’s own manager, Freddy Braidi. This is not new evidence of which Defendant was deprived prior to bringing its opposition. Braidi was questioned who the bookkeeper was for Defendant and responded as follows: “It was – it was two ladies who did it, Tiara and Rikam that they were hired to handle the bookkeeping.” (Braidi Depo. 94:15-18.) When asked to confirm if Ciego and “Rika” were the “bookkeepers for 6365,” Braidi responded “[y]es.” (Id. 94:25-95:2.)

The evidence before the court reflects a duly served deposition notice, two continuances, and a failure to appear. Defendant submits no evidence to support its last-minute contention that Ciego is in fact an employee of a separate entity. The lack of verification of Braidi’s declaration, when such evidence is the only evidence to support the contentions of the opposition, is notable.

Plaintiff seeks sanctions in the amount of $3,300 for six (6) hours spent on meeting and conferring and preparing the present motion, and five (5) hours anticipated in reviewing an opposition and preparing a reply brief, as well as appearing at the hearing in this matter. (Sichi Decl. ¶ 10.) Sichi declares that he seeks a total of eleven (11) hours at an hourly rate of $300, which this court finds reasonable. Plaintiff’s request for sanctions against defendant is granted.

Plaintiff’s motion to compel the deposition of Tiara Ciego is granted. The parties shall arrange for her deposition within thirty (30) days of this order.

Plaintiff is ordered to provide notice of this ruling.

Date: February 9, 2021

Honorable Stuart M. Rice

Judge of the Superior Court

Superior Court of California

County of Los Angeles

Travis Nail,

Plaintiff,

Case No.

BC674238

v.

[Tentative] Ruling

Ivar Investments, LLC, et al.,

Defendants.

Hearing Date: February 9, 2021

Department 49, Judge Stuart M. Rice

Motion for Issue, Evidentiary and Monetary Sanctions

Moving Party: Plaintiff Travis Nail

Responding Party: Defendant 6356 Second Floor, LLC

Ruling: Plaintiff’s motion for sanctions is granted in part as set forth below. Monetary sanctions are imposed in the amount of $3,660.

Plaintiff Travis Nail (“Plaintiff”) moves for an order imposing issue, evidentiary and monetary sanctions against Defendant 6356 Second Floor, LLC (“Defendant”) for its failure to comply with the court’s February 6, 2020 order compelling Defendant to produce further responses to Plaintiff’s requests for production of documents, and for its attempts to impede the discovery process.

Evidentiary Objections

Plaintiff objects to the declaration of Freddy Braidi, manager of Defendant 6356 Second Floor, LLC (“Defendant”), submitted in support of Defendant’s opposition to this motion and to the concurrently heard motion to compel the deposition of Tiara Ciego. The objection filing, in its entirety, states that “Plaintiff, Travis Nail submits the following evidentiary objections to the entirety of the Declaration of Freddy Braidy in support of Defendant, 6356 Second Floor, LLC’s Opposition to Motion to Compel Deposition of Party Affiliated Witness, Tiara Ciego as the declaration of Freddy Braidi is unsigned and therefore inadmissible.”

As discussed in the context of Plaintiff's motion to compel deposition, this declaration is unsigned, and therefore unverified. It is not competent evidence and carries no weight in this matter. (Inselberg v. Inselberg (1976) 56 Cal. App. 3d 484, 489.) The objection is sustained.

Discussion

“Plaintiff now urges this Court to enter issue/evidentiary sanctions finding that Freddy Braidy breached his fiduciary obligations to Plaintiff and member, Travis Nail.” (Motion 10:5-6.) As phrased in the motion, the requests for sanctions do not seek evidentiary sanctions. Rather, Plaintiff seeks issue sanctions by which a determination is made that Freddy Braidi breached his fiduciary obligations to Plaintiff. There is no articulated request which seeks evidentiary sanctions.

Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidentiary or monetary sanctions. (See Code Civ. Proc., §§ 2023.010(g), 2030.290(c); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) “[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.)

Plaintiff’s request for sanctions is premised on Defendant’s purported failure to comply with this court’s February 6, 2020 order compelling Defendant to produce further responses to Plaintiff’s requests for production of documents responsive to requests numbers 1, 3-11, 13-32, 34-46, and 48-65. Defendant did not oppose the February 6, 2020 motion, nor did it appear at the hearing. The court imposed sanctions in the amount of $2,400. Plaintiff contends that “Plaintiff made a final attempt to elicit further responses and responsive documents by sending a final meet and confer on April 16, 2020. That meet and confer fell on deaf ears and after waiting even longer for Defendant to provide the documents requested, Plaintiff ultimately brought the motion at hand.” (Motion 11:1-4.) Plaintiff also bases this request for sanctions on Defendant’s failure to produce its bookkeepers for deposition, which is the subject of a motion to be heard concurrently with this motion and shall be granted in favor of Plaintiff.

In support of this motion, Plaintiff submits the declaration of counsel, Matthew Sichi, who declares that Defendant failed to serve the further responses as ordered. (Sichi Decl. ¶ 16.) Sichi sent Defense counsel a meet and confer letter on April 16, 2020, to discuss the failure to produce the documents. (Id. ¶ 16, Exh. F.) However, as of this declaration, May 8, 2020, Plaintiff has received no responses. (Id.)

In opposition, Defendant argues that “Plaintiff's frustrations about how the discovery process has gone is overblown, in light of the substantial amount of information that Defendants have provided in discovery.” (Opp. 8:3-5.) Defendant argues that “[t]o date, all of the financial files Plaintiff has requested of 6356 LLC have been produced to Plaintiff, although Plaintiff insists it has not yet received the data in “native format.” (Id. 8:14-16.) However, Defendant provides no evidence in support of this opposition. The declaration of counsel, Warren O. Hodges, declares only as to information pertaining to the concurrently heard motion to compel deposition. In the absence of any evidence to support its opposition, the evidence before the court reflects that Defendant failed to appear and oppose the motion to compel further responses and has to date failed to provide responsive documents.

In reply, Plaintiff asserts that “Defendants fail to acknowledge that Plaintiff’s counsel sent correspondence to Defendants’ on April 16, 2020, in a final attempt to elicit further responses and documents as ordered by this Court prior to filing the instant motion.” (Reply 2:23-25.) Plaintiff also contends that “[h]aving sought records for nearly two years and since May of 2019, Plaintiff now sits in the unenviable position of attempting to prove up his claims, and in particular that for breach of fiduciary duty, without the documents necessary to do so.” (Reply 6:8-10.)

While the evidence before the court reflects that Defendant has failed to comply with this court’s February 6, 2020 order, the court is not prepared to imposed issue sanctions at this stage of the proceedings. However, Defendant shall comply with the February 6, 2020 order, and produce all documents response to Requests for Production 1, 3-11, 13-32, 34-46, and 48-65, without objections within twenty (20) days of this ruling. Defendant shall also comply with the concurrent order to produce Ciego for deposition. Should Defendant fail to comply with either order by the respective deadlines, issue sanctions by which it is determined that Defendant’s managing member, Freddy Braidi, breached his fiduciary duties to Plaintiff may be imposed. Defendant may also face the possibility of terminating sanctions.

Plaintiff also seeks monetary sanctions in the amount of $3,660 for fees incurred in meeting and conferring and preparing the present motion. Sichi declares that he spent seven (7) hours on meeting and conferring and preparing the present motion, and five (5) hours anticipated in reviewing an opposition and preparing a reply brief, as well as appearing at the hearing in this matter. (Sichi Decl. ¶ 26.) Sichi declares that he seeks a total of twelve (12) hours at an hourly rate of $300, which this court finds reasonable. Plaintiff’s request for sanctions is granted.

Plaintiff’s motion for sanctions is granted in part as set forth above. Monetary sanctions are imposed against defendant in the amount of $3,660.

Plaintiff is ordered to provide notice of this ruling.

Date: February 9, 2021

Honorable Stuart M. Rice

Judge of the Superior Court

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