Case Number: BC560191??? Hearing Date: May 10, 2016??? Dept: 78
Superior Court of California
County of Los Angeles
Department 78
MARY DER-PARSEGHIAN;
Plaintiff,
vs.
JILBERT TAHMAZIAN;
Defendant. Case No.: BC 560191
Hearing Date: May 10, 2016
[TENTATIVE] RULING RE:DEFENDANT AND CROSS-COMPLAINANT JILBERT TAHMAZIAN?S MOTION FOR TERMINATING SANCTIONS.
Tahmazian?s Motion for Terminating Sanctions is GRANTED. Der-Parseghian?s complaint is dismissed with prejudice, and her Answer in the cross-action is stricken, and default entered. Tahmazian to submit a Proposed Judgment on the Der-Parseghian action within ten (10) days of the hearing. Tahmazian to submit a default judgment packet on its cross-complaint within thirty days of this order. A hearing on an OSC re entry of default judgment will be set for June __, 2016, at 8:30 a.m.
FACTUAL BACKGROUND
This is a breach of contract and legal malpractice case. Plaintiff Mary Der-Parseghian (?Der-Parseghian?) alleges that she entered into a contract for legal services with defendant Jilbert Tahmazian (?Tahmazian?) on July 28, 2011. (First Amended Complaint (?FAC?) Ex. A.) Der-Parseghian alleges that Tahmazian breached the contract on March 2, 2014, when he failed to pay $15,264 in legal fees. (FAC ? 10.)
Tahmazian has filed a cross-complaint in this matter. Tahmazian alleges that in the previous litigation, Der-Parseghian breached her duty to defend Tahmazian with due care because she maintained that an escrow had occurred in the underlying transaction but that Tahmazian owed no duty to the plaintiff in the underlying case, which Tahmazian maintains is legally contradictory. (Cross-Complaint ?? 7?10.) Tahmazian states that after substituting in new counsel, he realized that he made statements during his deposition based upon Der-Parseghian?s advice that confirmed that he was acting as an escrow officer and that an escrow actually occurred, making impossible his defense that he was not an escrow officer and that no escrow occurred. (Id. ? 10.)
PROCEDURAL HISTORY
Der-Parseghian filed her original complaint on October 14, 2014. She filed her FAC on October 14, 2014 alleging a single cause of action for breach of contract.
Tahmazian filed his Cross-Complaint on October 14, 2014, alleging a single cause of action for attorney malpractice.
PRE-FILING HISTORY
Written Discovery History
Tahmazian first propounded discovery requests on Der-Parseghian on June 3, 2015, to which Der-Parseghian requested an extension, and ultimately served responses on July 20, 2015. (Tahmazian Decl. ?? 4, 5.) On August 20, 2015, Tahmazian sent a meet-and-confer letter to Der-Parseghian regarding the deficiencies of the responses, and Der-Parseghian requested an extension to respond to the letter until September 10, 2015, which was granted. (Id. ?? 6, 7.) Another extension was requested until September 29, 2015. (Id. ? 8.) Der-Parseghian responded to the meet-and-confer letter on September 29, 2015 and served supplemental responses, but failed to serve signed original verifications. (Id. ? 10.) Although verifications were stated to be forthcoming, no verifications have been served as on March 14, 2016. (Id. ? 11.)
On October 2, 2015, a new meet-and-confer letter was
sent stating that the responses were still defective. (Tahmazian Decl. ? 12.) That letter was unanswered, and Tahmazian filed three Motions to Compel Further on October 13, 2015. (Id. ? 13.) Those motions were unopposed, and on February 9 and 11, 2016, this court granted the three motions, ordering Der-Parseghian to serve supplemental responses within twenty days of the rulings and pay sanctions.
On December 3, 2015, Tahmazian propounded Special Interrogatories, Set One on Der-Parseghian. (Tahmazian Decl. ? 15.) Tahmazian sent a meet and confer letter, which was unanswered, and thereafter filed a Motion to Compel on February 4, 2016, which is currently set for May 18, 2016. (Id. ? 15.) On February 25, 2016, Der-Parseghian sent an email promising to send delinquent discovery responses, but no documents were sent thereafter. (Id. ?? 19?20.)
On March 1, 2016, Tahmazian sent an email inquiring as to the responses and documents Der-Parseghian was required to submit pursuant to the February 9 and 11 court orders. (Tahmazian ? 21.) No response was given and no responses to the Special Interrogatories or supplemental responses to the other written discovery requests were served. (Id. ?? 23, 24.)
Deposition History
On December 2, 2015, Tahmazian informed Der-Parseghian that he intended to take her deposition, and proposed dates. (Tahmazian Decl. ? 25.) No response was sent, and multiple phone calls were unreturned. (Id. ? 26.) Tahmazian sent more emails on December 7 and 14 2015. (Id. ?? 27, 28.) On February 2, 2016, Tahmazian unilaterally noticed Der-Parseghian?s deposition for February 26, 2016. (Id. ? 29, Ex. H.) On February 24, 2016, Tahmazian sent a letter seeking to confirm Der-Parseghian?s appearance. (Id. ? 30.) On February 25, 2016, Der-Parseghian sent a email informing Tahmazian that she would not appear at her deposition. (Id. ? 34.)
DISCUSSION
I. MOTION FOR TERMINATING SANCTIONS
The court may impose a terminating sanction ?against anyone engaging in conduct that is a misuse of the discovery process? 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.? (Code Civ. Proc., ? 2023.030, subd. (d).) A ?misuse of the discovery process? includes ?[f]ailing to respond or to submit to an authorized method of discovery,? and ?[d]isobeying a court order to provide discovery.? Code Civ. Proc., ? 2023.010, subds. (d), (g).)
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.) Dismissal is a drastic measure, and terminating sanctions should only be ordered when there has been previous noncompliance with a rule or order and it appears a less severe sanction would not be effective. (Link v. Cater (1998) 60 Cal.App.4th 1315, 1326.) ?[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. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.)
Tahmazian requests that this court (1) dismiss with prejudice Der-Parseghian?s complaint against Tahmazian, (2) strike Der-Parseghian?s answer to Tahmazian?s cross-complaint, and (3) enter a judgment by default against Der-Parseghian in Tahmazian?s cross-action. (Motion for Terminating Sanctions at p. 11.) No Opposition to this motion has been filed.
Der-Parseghian has offered no reasons for her failure to provide the supplemental responses ordered by the court on February 9 and 11, 2016, or her failure to pay the sanctions. Nor has Der-Parseghian offered any explanation for her failure to oppose those motions or to appear at her deposition. Plaintiff made no appearance at the April 26, 2016 post mediation status conference and the court set an OSC re: failure to appear for May 10, 2016, the same date as this motion for terminating sanctions. Der-Parseghian also failed to appear at the February 9 and 11, 2016 hearings on the Motions to Compel Further. The last time Der-Parseghian made an appearance in this matter was February 20, 2015, pursuant to a hearing on a demurrer before Judge Lyons in Department 20.
Der-Parseghian has failed to appear in this matter for over one year, has failed to comply with discovery requests, has failed to comply with the court?s orders regarding discovery, has failed to appear at her deposition, and has failed to oppose this motion for terminating sanctions. The court finds that an order for terminating sanctions is sutified here, and that no less sanctions would produce compliance with discovery rules. Absent an offer of proof explaining her conduct and agreeing to comply with discovery requests and this court?s prior orders at the hearing on this motion, Tahmazian?s Motion for Terminating Sanctions is GRANTED. Der-Parseghian?s complaint is dismissed with prejudice, and her Answer in the cross-action is stricken, and default entered. Tahmazian to lodge a Proposed Judgment on the Der-Parseghian action, and submit a default judgment packet on its cross-complaint.
Defendant to give notice.
DATED: May 10, 2016
________________________________
Hon. Gail Ruderman Feuer
Judge of the Superior Court