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1 DAN ROWAN CORTRIGHT, SBN 206856 THE ROWAN FIRM 2 PO Box 2061 Sebastopol, California 95473 3 707-360-1009 dan@therowanfirm.com 4 Attorneys for Plaintiff 5 LISA ROTH 6 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF LOS ANGELES1011 LISA ROTH, an individual, ) Case No.: )12 Plaintiff, ) COMPLAINT FOR: )13 vs. ) 1. Violation of the CA Fair Employment ) And Housing Act, THE PERCH PROJECT, LLC DBA THE ) 2. Violation of The Unruh Civil Rights Act,14 PERCH APARTMENTS, a Delaware limited ) 3. Breach of Contract, liability company; ROUNDHOUSE ) 4. Breach of The Covenant of Quiet15 COMMUNITIES, LLC, a Delaware limited ) Enjoyment/Warranty of Habitability, liability company; 4247 Eagle Rock #200Q, LP, a ) 5. Negligent Violation of Statutory Duty,16 California limited partnership; ABRA ) 6. Constructive Eviction; MANAGEMENT, INC., a California corporation; ) 7. Negligence/Premises Liability; and17 SAMANTHA GORMAN, an individual; and ) 8. Intentional Infliction of Emotional DOES 1-30, inclusive, ) Distress18 ) Defendants. )19 ) Jury Trial Demanded20 COMES NOW Plaintiff Lisa Roth (“Plaintiff”) and alleges as follows:21 INTRODUCTION22 1. Plaintiff brings this action against Defendants THE PERCH PROJECT, LLC DBA23 THE PERCH APARTMENTS; ROUNDHOUSE COMMUNITIES, LLC, 4247 Eagle Rock #200Q,24 LP, ABRA MANAGEMENT, INC., SAMANTHA GORMAN, and DOES 1-30 (collectively,25 126 COMPLAINT 1 "Defendants") for unlawfully and intentionally discriminating against Plaintiff because of her 2 disability/handicap and denying Plaintiff equal access to the dwelling/housing accommodation 3 located 4247 Eagle Rock Blvd, Unit 316, Los Angeles, CA 90065 (the "Accommodation"), which 4 Defendants own/owned, operate/operated, or otherwise control/ controlled, as well as for breach of 5 contract, breach of the covenant of quiet enjoyment/breach of the warranty of habitability, 6 fraud/intentional misrepresentation, negligence/premises liability, and intentional infliction of 7 emotional distress. 8 PARTIES 9 2. Plaintiff is a natural person. At all times relevant to this Complaint, Plaintiff is and10 has been considered disabled.11 3. At all times mentioned herein, defendant The Perch Project, LLC dba The Perch12 Apartments (the “Perch”) was, on information and belief, a Delaware limited liability company.13 4. At all times mentioned herein, defendant 4247 Eagle Rock #200Q, LP (“4247 LP”)14 was, on information and belief, a California limited partnership.15 5. At all times mentioned herein, defendant ABRA Management, Inc. (“ABRA”) was,16 on information and belief, a California corporation.17 6. At all times mentioned herein, defendant Roundhouse Communities, LLC18 (“Roundhouse”) was, on information and belief, a Delaware limited liability company.19 7. At all times mentioned herein, defendant Samantha Gorman (“Gorman”), who was20 an employee of ABRA, is an individual residing, on information and belief, in California.21 8. The true names and capacities, whether individual, corporate, or otherwise of the22 defendants named in this Complaint as Does 1 through 30, inclusive, are unknown to Plaintiff.23 Plaintiff is informed and believes, and on that basis alleges, that each of said fictitiously named24 defendants is liable to Plaintiff on some or all of the causes of action herein alleged and therefore25 226 COMPLAINT 1 Plaintiff sues said defendants by said fictitious names. Plaintiff will move to amend this Complaint 2 when the true names and capacities of said fictitiously named defendants are ascertained. 3 THE ACCOMODATION 4 9. The Accommodation is a building, structure, or portion thereof, which is intended for 5 occupancy as a residence by one or more persons. 6 JURISDICTION AND VENUE 7 10. This Court has jurisdiction over all causes of action asserted in this Complaint 8 pursuant to California Constitution, Article VI, § l0 and California Code of Civil Procedure §410.10 9 because the acts and omissions alleged herein were committed in the State of California, County of10 Los Angeles, because this is a civil action wherein the matter in controversy, exclusive of interest, is11 greater than $35,000, and because this case is a cause not given by statute to other trial courts.12 11. Venue is proper in this Court pursuant to California Code of Civil Procedure §395,13 because these claims are asserted in a complaint filed in this venue, Plaintiff resides and was injured14 in this county, defendants reside, on information and belief, and/or transacted business within Los15 Angeles County, and the injury was caused in Los Angeles County.16 FACTUAL ALLEGATIONS17 12. Plaintiff suffers from a disability and/or medical condition(s) that is/are a disability.18 13. Plaintiff suffers from Mast Cell Activation Syndrome, MCS (multiple chemical19 sensitivity), limbic system impairment, extreme temperature dysregulation and uncontrollable20 vomiting caused by a severe mold allergy. Plaintiff has been disabled with her conditions since21 approximately 2019/2020, and also now suffers from neuropathy and other symptoms acquired22 while living in the Accommodation, including the inability to use her hands because of shaking23 tremors and pain, nerve damage, central nervous system damage, cognitive impairment, and24 Plaintiff’s inability to swallow food or water. Plaintiff’s disability symptoms substantially limit and25 greatly affect her major life activities. 326 COMPLAINT 1 14. Plaintiff deals with the symptoms of her various disabilities on a daily basis. 2 15. During Plaintiff’s tenancy at the Accommodation, defendants owned, operated, 3 managed or controlled the Accommodation. Plaintiff began residing at the Accommodation in 4 April 2020. 5 16. Starting on April 26, 2020, Plaintiff’s unit air conditioner began leaking water and 6 making a loud noise, which continued throughout her tenancy until early 2023. Plaintiff continually 7 reported this issue to the various property manager defendants over the nearly three years she lived 8 there, and defendants sent several maintenance persons to inspect and repair the unit. However, 9 some told Plaintiff there was nothing wrong with her air conditioner, others told her they did not10 know how to fix the problem, others told her she needed to clean the dust in her apartment as that11 was causing the A/C unit to malfunction. Even after contacting her own air conditioner technician12 to repair the air conditioner, who told Plaintiff the A/C unit was installed improperly and attempted13 to repair it, the A/C unit still did not work and continued to leak water on the concrete floor of14 Plaintiff’s apartment unit.15 17. In fact, as a result of the standing water leaking from her A/C unit, Plaintiff slipped16 and fell, twice, becoming injured as a result of her falls.17 18. As a result of the standing water from the leaking A/C unit and the resulting mold18 growth in the A/C ducts/unit and chemicals being emitted thereby, Plaintiff began experiencing19 increased symptoms of her severe mold allergy, as well as new and different medical symptoms,20 including significant neuropathy, an increase in her uncontrollable violent vomiting, internal21 tremors, inability to use her hands because of shaking tremors and pain, nerve damage, central22 nervous system damage, antibiotic resistant bacterial infections, chronic urinary tract infections that23 were not responsive to antibiotics (Plaintiff had infections the entire time she lived there, every24 single day), cognitive impairment, early menopause, fatty liver, anxiety, respiratory issues and25 Plaintiff’s inability to swallow food or water. 426 COMPLAINT 1 19. Beginning on April 5, 2020, Plaintiff requested maintenance/repairs and 2 accommodations to alleviate her symptoms from the mold allergy and chemical sensitivity she was 3 experiencing in her unit. Such accommodation requests included an air conditioner capable of 4 reducing the temperature in her unit below 71 degrees (it was locked at this temperature and would 5 not go lower) and that does not leak water and make a loud ringing noise nearly constantly, and that 6 her bathroom exhaust fan to be turned on (it was not turned on when she moved in, resulting in 7 there being absolutely no ventilation). 8 20. Defendants Roundhouse and Perch did not adequately repair the broken air 9 conditioner, breaching their lease agreement with Plaintiff. Thereafter, defendants ABRA, 4247 LP10 and Gorman also refused to provide Plaintiff with a working air conditioner unit until nearly the end11 of her tenancy. These defendants’ refusal was also a breach of the Lease Contract terms that12 applied to them pursuant to its terms.13 21. Plaintiff made additional requests for accommodation to defendants during June14 2021 when she requested repair to the elevator nearest her apartment due to her severe illness not15 permitting her feasibly to use the other elevator on the far side of the large building. Further,16 Plaintiff began at this time to receive electric shocks from her clothes drying machine which was17 also producing lint that burned her skin when touched. Further, while showering in her unit,18 Plaintiff’s skin was burned by the water, which likely had a high chlorine or other chemical content19 to which Plaintiff was allergic/intolerant.20 22. Defendants Roundhouse and Perch refused to maintain a working elevator, to21 remedy the water contamination issue or to repair Plaintiff’s dryer such that she would not receive22 burns or electric shocks from it.23 23. At the end of April/early May 2022, after her leaking air conditioner unit had still not24 been replaced or repaired, despite multiple requests, Plaintiff slipped and fell on the wet concrete25 526 COMPLAINT 1 floor of her unit twice becoming injured. She reported these falls/injuries to defendants ABRA, 2 4247 LP and Gorman, yet no response was received from any defendant. 3 24. In June 2022, ABRA’s property manager employee Mayra Ruiz informed Plaintiff 4 that management was closing one of the two garbage rooms where the trash bins are stored for 5 residents of all 59 units in the Accommodation. Subsequent to this, there was inadequate space for 6 all residents’ trash to be safely and sanitarily disposed of. 7 25. In August 2022, Plaintiff again complained to defendants of the A/C unit leaking 8 water onto her floor and requested that she be permitted to have her own air conditioning technician 9 come repair the unit, but defendants refused saying they would provide their own repairman. The10 A/C unit did not get fixed.11 26. From August 19-22, 2022, Plaintiff reported lower right back pain to her doctor,12 which at the time she did not realize was the result of her slip and falls in early May. Furthermore,13 at this time Plaintiff’s teeth began breaking resulting in horrific mouth and tongue cuts. This14 symptom she later found out was related to the many conditions in her unit at the Accommodation15 that she reported many times (water contamination, mold, chemicals).16 27. In September 2022, defendants ABRA/4247 LP’s building maintenance man at the17 Accommodation, Diego, saw Plaintiff faint twice and become violently ill (vomit) in front of him as18 a result of her reaction to the conditions inside her apartment. In addition, defendant Gorman19 emailed Plaintiff indicating that their A/C technicians found nothing wrong with her A/C unit and20 consider the matter closed, despite the fact the A/C unit still leaked a tremendous amount of water21 (causing a slip/fall hazard) and was still making a horrible noise. Gorman later physically assaulted22 Plaintiff during the replacement of the A/C unit.23 28. In October 2022, Plaintiff discovered from her neighbors at the Accommodation that24 their A/C units were also unmaintained and leaking water and that the filters were not changed25 regularly. On October 17, 2022, Plaintiff made another accommodation request to ABRA 626 COMPLAINT 1 indicating her health issues had gotten so severe that she was extremely concerned for her medical 2 health. This request also included a request that proper notice be given to enter her unit, as Diego, 3 the maintenance man opened Plaintiff’s door once while she was unclothed and vomiting violently, 4 causing Plaintiff extreme embarrassment, emotional distress and humiliation. Defendants refused to 5 accommodate Plaintiff’s request for a 2-hour maintenance window such that these events could be 6 avoided. Her illnesses caused her to become violently ill frequently, and she informed defendants 7 that just showing up after providing 24 hours’ notice for the maintenance call was insufficient to 8 allow her to be in a position to permit the maintenance man entry to her unit. 9 29. Defendants’ management was not helpful or respectful and treated Plaintiff as if she10 were mentally ill and unstable. And at this time, Plaintiff began to have burning in her hands and11 arms, her hands and arms were going numb, she was unable to remember anything at all, especially12 while she was speaking. She could not remember what she was even talking about and began to13 hallucinate. She had horrific pulsatile tinnitus that she never had before, had word recall problems14 and horrific neuropathy. She discovered about this time that these symptoms were being caused by15 the conditions in her unit at the Accommodation. Defendants continued to tell Plaintiff that her A/C16 unit was dusty (she had informed them of her severe dust and dust mite allergies) and she needed to17 clean it. Apparently, the A/C unit had never been cleaned by any of defendants’ maintenance18 workers or A/C techs they sent to inspect/repair it.19 30. Starting in October 2022, Plaintiff began having her apartment tested for mold and20 discovered there was significant mold presence caused in part by the leaking A/C unit and21 uncleaned A/C ducts. She then discovered that her increased and severe medical symptoms were in22 fact caused by the conditions in her unit that defendants failed to remediate/repair despite her23 multiple and repeated requests.24 31. Plaintiff also performed at-home water contamination tests on her shower water to25 discover that the water provided to her unit was drastically contaminated, which further added to 726 COMPLAINT 1 her injuries and medical symptoms. 2 32. Also, in November 2022, Plaintiff requested from defendant ABRA to have 3 independent environmental testing on her A/C unit and her apartment, but ABRA did not respond to 4 these requests. 5 33. At this time, Plaintiff had become bedridden due to her severe medical symptoms. 6 Throughout her tenancy at the Accommodation, she was required to add more and more 7 medications to alleviate her symptoms. She was overheating (due to her extreme heat intolerance), 8 requiring her to run her A/C unit nearly constantly. Of course, until this time she had not realized it 9 was her A/C unit contributing to her sickness.10 34. In December 2022, after Plaintiff sent defendants her own environmental testing11 reports indicating the A/C unit was contaminated and causing mold in her unit, ABRA finally12 replaced her A/C unit, long after Plaintiff was made severely sicker by having it run for nearly three13 years without proper maintenance. Additionally, at this time, Plaintiff provided defendants with a14 doctor’s letter indicating her apartment conditions were making her so ill that she could not stay one15 more minute in that unit at the Accommodation without risking her very life. ABRA refused to16 provide alternate accommodations for Plaintiff, despite her request for same.17 35. Moreover, on the day the A/C unit was replaced, defendant Gorman physically18 prevented Plaintiff from even watching the unit being replaced to ensure proper safety and19 environmental protocols were being utilized. Gorman even physically assaulted Plaintiff during this20 time in an attempt to prevent Plaintiff from seeing the work being done. Gorman chased Plaintiff21 down the hallway screaming at Plaintiff: “THAT IS NOT YOUR PROPERY!!” referring to22 Plaintiff’s attempt to see the A/C unit replacement work. When Plaintiff attempted to return to her23 apartment, Gorman body-checked Plaintiff, physically assaulting her to block Plaintiff’s attempt to24 enter her apartment.25 826 COMPLAINT 1 36. Plaintiff saw that the workmen doing the replacement had absolutely no safety 2 protocols in place and did a “smash and grab” replacement of the A/C unit leaving contaminants 3 everywhere around Plaintiff’s apartment, including 27,000 spores of Cladosporium mold in the air 4 in her unit. 5 37. Also, while removing the A/C unit, defendants sprayed chemicals inside Plaintiff’s 6 unit, despite her having repeatedly informed them previously of her severe chemical intolerance 7 disability. 8 38. Plaintiff had previously requested that ABRA provide her with the time of the A/C 9 unit replacement so that she could ensure independent environmental testing could be done of the10 inside of the unit and her air ducts. ABRA refused. However, after Plaintiff got violently ill in11 front of Gorman and the others performing the replacement, they all left her apartment and Plaintiff12 had the ducts tested. However, because ABRA/Gorman did not honor Plaintiff’s request to have13 her own testing done on the old A/C unit and had their own testing done, Plaintiff’s independent14 environmental testing agent refused to do any testing claiming the old unit’s parts had been15 contaminated.16 39. With the air ducts exposed in Plaintiff’s unit containing the Cladosporium spores,17 she suddenly could not breathe, her internal vibrating was extremely debilitating, and she had18 seizures while sitting in her car. Plaintiff was forced to take an ambulance for medical help.19 40. ABRA stated they needed to leave the air scrubber in Plaintiff’s apartment for 2420 hours after removing her old A/C unit. However, Plaintiff’s doctor’s orders were that no air21 scrubber could be in her apartment while she was there, as it disturbed the particles that were22 harming Plaintiff. When Plaintiff returned from her hospital visit, the air scrubber was still on, and23 Plaintiff had an immediate reaction and could not breathe. She emailed ABRA management about24 the issue, but they told her to stay in the apartment and told her that it was fine to sleep in the25 926 COMPLAINT 1 apartment with the air scrubber on. ABRA management are not medical professionals, and this 2 advice directly contradicted Plaintiff’s own medical professional’s advice. 3 41. When Plaintiff stopped paying rent as a result of her being forced to live in an 4 uninhabitable unit causing her so much illness and distress, ABRA threatened to evict her forcing 5 Plaintiff to continue paying rent for a unit at the Accommodation that was far below health and 6 safety standards and was indeed uninhabitable and a serious threat to her health. 7 42. As a result of the extreme presence of mold in her unit at the Accommodation and 8 Plaintiff’s severe mold allergy, she was forced to throw out all of her belongings/clothes. Plaintiff 9 hired an expensive independent environmental professional to inspect her unit and provide reports.10 These reports are attached hereto collectively as Exhibit A and confirm the presence of mold and11 various harmful chemicals and metals, flame retardants, toxins and Stachybotrous/mucor (black12 mold) and more. This professional also discovered there was never a filter from outside air for13 Plaintiff’s A/C unit (a discrete code violation). He confirmed that all units in the Accommodation14 were likely built the same way. He further confirmed Plaintiff’s unit had no ventilation which15 caused Plaintiff’s unit to reach 76 degrees with no heat on (a significant problem for Plaintiff’s16 extreme temperature intolerance).17 43. In addition to the foregoing, Plaintiff’s two dogs had seizures in her apartment, and18 one had a horrible skin infection that looked like flesh-eating bacteria all over his head. When19 Plaintiff got a new dog (after the other two died), the new dog also began to have seizures in the20 apartment. As soon as Plaintiff moved out, this new dog’s seizures stopped.21 44. During 2022, as a direct result of the conditions in her apartment and her symptoms22 caused thereby, Plaintiff lost the use of her hands almost completely and had to begin using scissors23 to open anything.24 45. Plaintiff had searched for alternative living conditions, but due to the COVID25 pandemic her search proved unfruitful. She was finally able to move out of the Accommodation in 1026 COMPLAINT 1 early 2023, but not until after suffering from severe medical symptoms and becoming subject to 2 several new medical conditions/injuries received while she lived there. 3 FIRST CAUSE OF ACTION 4 Violations of the California Fair Employment and Housing Act - Cal. Gov. Code§§ 12900 et seq. 5 (Against all Defendants) 6 46. Plaintiff hereby incorporates all previous paragraphs as if they have been fully stated 7 herein. 8 47. The Accommodation was and is a housing accommodation. 9 48. Plaintiff is a person with disabilities defined under state law. She suffers from: Mast10 Cell Activation Syndrome, MCS (multiple chemical sensitivity), limbic system impairment,11 extreme temperature dysregulation and uncontrollable vomiting caused by severe mold allergy, as12 well as several other conditions that arose from exposures during her time at the Accommodation13 including neuropathy, an increase in her uncontrollable vomiting, internal tremors, inability to use14 her hands because of shaking tremors and pain, nerve damage, central nervous system damage,15 cognitive impairment, and Plaintiff’s inability to swallow food or water.16 49. Defendants own/owned, operate/operated, manage/managed or otherwise17 control/controlled a building or structure, or a portion thereof, occupied as or designed or intended18 for occupancy as a residence by one or more persons.19 50. It is unlawful for Defendants to discriminate against Plaintiff because of Plaintiff's20 disabilities.21 51. Defendants intentionally discriminated against Plaintiff because of Plaintiff's22 disabilities as more fully set forth herein. Defendants have made unavailable or otherwise denied23 full and equal access to a dwelling to Plaintiff on the basis of her disabilities.24 52. Defendants' policy of denying persons with disabilities full and equal access had a25 discriminatory effect against people with disabilities, such as Plaintiff. 1126 COMPLAINT 1 53. Defendants have refused to engage in the interactive process, to provide needed 2 repairs when requested regarding the issues surrounding Plaintiff’s accommodation requests, and 3 failed to provide a reasonable accommodation to Plaintiff after same was requested several times. 4 54. Further, Defendants made statements that indicate a preference, limitation, or 5 discrimination, with respect to a housing accommodation, on a disallowed basis: specifically, 6 disability. 7 55. Plaintiff has been injured as result of Defendants' conduct, including, but not limited 8 to, physical and mental injury, emotional distress, humiliation, and embarrassment. 9 56. Plaintiff seeks actual damages, punitive damages, an injunction, reasonable10 attorney's fees and costs, including expert witness fees if applicable, and any other such relief the11 court deems appropriate.12 57. Wherefore, Plaintiff prays for judgment as set forth herein.13 SECOND CAUSE OF ACTION14 Violations of the Unruh Civil Rights Act - California Civil Code §§51-5315 (Against ABRA, 4247 LP and Samantha Gorman)16 58. Plaintiff hereby incorporates all previous paragraphs as if they have been fully stated17 herein.18 59. The Accommodation is a business establishment, which applicable law defines to19 include residential dwellings.20 60. Defendants intentionally discriminated against Plaintiff because of Plaintiff’s21 disabilities.22 61. Defendants' acts and omissions with regard to the discriminatory treatment of23 Plaintiff on the basis of Plaintiff’s disabilities, have been in violation of California Civil Code §§5124 and 51.5, the Unruh Civil Rights Act, and have denied to Plaintiff the right to full and equal25 accommodations, advantages, facilities, privileges, or services in a business establishment. 1226 COMPLAINT 1 62. Plaintiff was harmed by Defendants’ discriminatory actions. 2 63. Defendants’ conduct was a substantial factor in causing Plaintiff’s harm. 3 64. As a result of the violation of Plaintiff’s civil rights protected by California Civil 4 Code §§51 and 51.5, Plaintiff is entitled to the rights and remedies of California Civil Code §52, 5 including a trebling of actual damages, minimum statutory damages, as well as reasonable attorneys' 6 fees and costs, as allowed by statute, according to proof, and Plaintiff seeks the same. 7 65. Plaintiff also seeks to enjoin Defendants from further violating disabled persons’ 8 rights. 9 66. Wherefore, Plaintiff prays for judgment as set forth herein.10 THIRD CAUSE OF ACTION11 Breach of Contract12 (Against Perch and 4247 LP)13 67. Plaintiff hereby incorporates all previous paragraphs as if they have been fully stated14 herein.15 68. On March 25, 2020, Plaintiff and defendant Perch entered into a Lease Contract for16 Plaintiff to rent the Accommodation for a term of 14 months from April 4, 2020 to June 3, 2021. A17 true and correct copy of this Lease Contract is attached hereto as Exhibit B.18 69. Regarding air conditioning, the Lease Contract specifically states in paragraph 27:19 “If air conditioning or other equipment malfunctions, you must notify our representative as soon as20 possible on a business day. We’ll act with customary diligence to make repairs and reconnections.”21 However, despite this affirmative promise in the Lease Contract and Plaintiff’s multiple written22 requests for repair to her air conditioning unit, Perch did not act “with customary diligence to make23 repairs” thereto, leaving constant dripping water on Plaintiff’s floor which caused her physical24 injury twice. Perch’s failure to repair the air conditioner is a breach of their own lease term.25 70. Moreover, the Lease Contract states, at paragraph 37, that: “This Lease Contract 1326 COMPLAINT 1 binds subsequent owners.” Thus, 4247 LP and its agent ABRA were bound by the terms of the 2 Lease Contract as well to make repairs “with customary diligence” and they failed to do so as well. 3 Additionally, attached hereto as Exhibit C is a true and correct copy of the Residential Lease/Rental 4 Agreement entered into between Plaintiff and 4247 LP on or about 7/14/22. 5 71. Throughout Plaintiff’s tenancy at the Accommodation, defendants continued to fail 6 to repair numerous issues with her unit, including the leaking air conditioner which caused a 7 constant water hazard on which Plaintiff was injured twice, and even resorted to spraying chemicals 8 in her unit while attempting repairs, knowing Plaintiff was highly sensitive and susceptible to injury 9 from such chemicals. Plaintiff had told defendants on numerous occasions of her medical10 conditions and extreme sensitivity to any chemicals, yet defendants’ employees failed and refused11 to provide her with the accommodation of refraining from using such harmful chemicals in her unit12 or in her presence.13 72. Defendants’ actions as herein described were in breach of the terms of her leases14 with defendants, as well as in breach of the warranty of habitability and covenant of quiet15 enjoyment implied in every residential lease agreement.16 73. As a result of defendants’ actions, Plaintiff was severely harmed and suffered17 damages in an amount to be proven at trial, but in no event less than the amount she paid in rent at18 the Accommodation, the cost of her personal property she was forced to throw out, as well as her19 attorneys’ fees (pursuant to the Lease Contract and Residential Lease/Rental Agreement and costs20 of treatment for the symptoms she experienced as a direct result of defendants’ actions and failures21 to act.22 74. Wherefore, Plaintiff prays for judgment as set forth herein.23 FOURTH CAUSE OF ACTION24 Breach of the Covenant of Quiet Enjoyment/Warranty of Habitability Cal. Civil Code §§1927, 1941 et seq.25 1426 COMPLAINT 1 (Against Perch, Roundhouse, ABRA and 4247 LP) 2 75. Plaintiff hereby incorporates all previous paragraphs as if they have been fully stated 3 herein. 4 76. As the renter of the Accommodation, Plaintiff was entitled to the benefit of the 5 covenant of quiet enjoyment and warranty of habitability implied in every residential lease 6 agreement. (Cal. Civil Code §§1927, 1941 et seq.) 7 77. One of the terms of the Lease Contract states that “You accept the dwelling, fixtures, 8 and furniture as is, except for conditions causing the premises to be untenantable under California 9 Civil Code 1941.” (emphasis added.) California Civil Code §1941.1(a) states that “A dwelling shall10 be deemed untenantable for purposes of Section 1941 if it substantially lacks any of the following11 affirmative standard characteristics… (6) Building, grounds, and appurtenances at the time of the12 commencement of the lease or rental agreement, and all areas under control of the landlord, kept in13 every part clean, sanitary, and free from all accumulations of debris, filth…”14 78. In April 2020, shortly after move-in, Plaintiff reported to Perch that her unit, which15 did not have any window in the bathroom, did not have an operable exhaust fan (leaving the16 bathroom unventilated and subject to extreme mold growth), the air conditioner was locked at 7117 degrees and unable to cool the apartment to a lower temperature1 and was leaking a substantial18 amount of water onto her floor and making a ringing sound constantly, the toilet did work properly19 and overflowed regularly (both of which were continuing issues Plaintiff reported over and over20 again). Later, Plaintiff reported that the washer/dryer did not operate properly, and the dryer lint21 was so hot it actually burned her skin to the touch.22 79. With respect to the air conditioner, when it was finally replaced in early 2023,23 Plaintiff was horrified to discover that, not only was it missing a filter for the air being drawn in2425 1 Plaintiff informed them of her extreme temperature dysregulation/body overheating and need for a lower temperature. 1526 COMPLAINT 1 from outside, but the inside of the unit as well as all attached ducts were filthy with dirt and mold, 2 both of which had been blown into her unit at the Accommodation throughout her tenancy, causing 3 her significant injury. She hired an independent environmental inspector to inspect for mold or 4 other harmful contaminants/substances, who found Stachybotrys mold and various other harmful 5 substances in Plaintiff’s unit. See Rush report attached hereto as Exhibit A. 6 80. The regularly overflowing toilet was also a specific breach of the warranty of 7 habitability and covenant of quiet enjoyment as well. As Civil Code §1941.1(a) (2) states, a unit is 8 untenantable if it lacks “Plumbing or gas facilities … maintained in good working order.” 9 81. Furthermore, in June 2022, defendant 4247 LP, through its property manager at that10 time ABRA, informed Plaintiff that management was closing one of the two rooms where the11 garbage receptacles were kept for the entire building (59 units), leaving only one room for all12 residents to dispose of their trash. Civil Code §1941.1(a)(7) provides that a dwelling is13 untenantable if it lacks: “An adequate number of appropriate receptacles for garbage … in clean14 condition and good repair … with the landlord providing appropriate serviceable receptacles …15 and being responsible for the clean condition and good repair of the receptacles under his or her16 control.” Following management’s removal of one of the two garbage rooms, the tenants, including17 Plaintiff, were left with inadequate receptacles into which they could dispose of their trash. Another18 clear breach of the covenant of quiet enjoyment and warranty of habitability.19 82. Finally, the stove in Plaintiff’s unit was not ventilated at all, causing toxic20 smoke/fumes from cooked food to remain in her unit which she was forced to breathe in regularly.21 83. On or about July 14, 2022, Plaintiff signed a Residential Lease/Rental Agreement22 with the new owner of the Accommodation 4247 LP. A true and correct copy of the Residential23 Lease/Rental Agreement is attached hereto as Exhibit C.24 84. Despite her repeated complaints, defendants Perch, Roundhouse, ABRA and 424725 LP failed and refused to repair these conditions, rendering her unit untenantable and dangerous to 1626 COMPLAINT 1 Plaintiff’s health and safety during her entire tenancy under the Civil Code. These untenantable 2 conditions that went unremedied also amounted to a clear breach of the covenant of quiet 3 enjoyment, as they substantially interfered with Plaintiff’s right to the use and enjoyment 4 of the Accommodation. 5 85. As a direct result of defendants’ actions as herein alleged, Plaintiff suffered 6 substantial damages in an amount to be proven at trial. Further, as this tort cause of action is based 7 on an implied warranty included in the lease agreements between Plaintiff and defendants, and both 8 lease agreements have an attorneys’ fee clause, Plaintiff is entitled to recover her attorneys’ fees. 9 86. Wherefore, Plaintiff prays for judgment as set forth herein.10 FIFTH CAUSE OF ACTION11 Negligent Violation of Statutory Duty12 (Against defendants 4247 LP, ABRA)13 87. Plaintiff hereby incorporates all previous paragraphs as if they have been fully stated14 herein.15 88. The laws and regulations of the State of California, including but not limited to,16 Sections 1714 and 1941.1 of the Civil Code, impose a statutory duty on defendants to maintain the17 Accommodation in a safe and habitable condition. A “due regard for human safety and health18 compels the imposition on a landlord of a duty of due care in the maintenance of the premises…19 Civil Code section 1941 and the housing codes of California were designed to protect the health and20 safety of tenants…” (Stoiber v. Honeychuck, 101 Cal. App. 3d 903, 924.)21 89. In negligently failing to repair the aforementioned defective and dangerous22 conditions, defendants have breached their statutory duty to Plaintiff.23 90. Defendants’ breach of their statutory duty is the direct cause of Plaintiff’s damages24 as more fully set forth herein.25 1726 COMPLAINT 1 91. Plaintiff is entitled to compensatory damages for the discomfort and annoyance she 2 suffered in the reasonable amount of $50 for each day she lived at the Accommodation as well as 3 property damage, including the replacement cost for all of her clothes and other personal belongings 4 and furniture she was forced to dispose of due to contamination with mold and other harmful 5 chemicals. 6 92. Wherefore, Plaintiff prays for judgment as set forth herein. 7 SIXTH CAUSE OF ACTION 8 Constructive Eviction (Cal. Civil Code §1940.2) 9 (Against 4247 LP, ABRA & Gorman)10 93. Plaintiff hereby incorporates all previous paragraphs as if they have been fully stated11 herein.12 94. California Civil Code §1940.2 states that:13 It is unlawful for a landlord to do any of the following for the purpose of influencing a tenant to vacate a dwelling:14 (a)(3) Use, or threaten to use, force, willful threats, or menacing conduct constituting a course of conduct that interferes with the tenant’s quiet15 enjoyment of the premises in violation of Section 1927 that would create an apprehension of harm in a reasonable person. Nothing in this paragraph16 requires a tenant to be actually or constructively evicted in order to obtain relief.17 (a)(4) Commit a significant and intentional violation of Section 1954.18 Section 1954 of the Civil Code prohibits a landlord from entering a tenant’s unit19 without proper notice and provides: “The landlord may not abuse the right of access or use it to harass the tenant.” It also provides that 24 hours’ notice is “presumed reasonable20 notice in the absence of evidence to the contrary.”21 95. Here, Plaintiff informed defendants more than once that as a direct consequence of22 her medical disability and conditions/symptoms caused thereby that she required not only 24 hours’23 notice, but less than a 2-hour window for maintenance visits from defendants’ employees. She24 emailed these requests to defendants with an explanation as to why this was necessary to permit her25 to be clothed and available to receive the maintenance employee into her unit, constituting 1826 COMPLAINT 1 “evidence to the contrary” that 24 hours’ notice alone was sufficient for this tenant. 2 96. Furthermore, as stated herein, defendants 4247 LP, ABRA and Gorman used 3 “menacing conduct constituting a course of conduct that interfere[d] with [Plaintiff]’s quiet 4 enjoyment of the [Accommodation] in violation of [Civil Code] Section 1927 that [did] create an apprehension of harm in [Plaintiff].” On at least one occasion, Gorman physically assaulted 5 Plaintiff and screamed at her in the hallway of the building during the A/C unit replacement work, 6 causing significant apprehension of harm in Plaintiff. 7 97. Frustrated and becoming more and more ill by the day during her residency at the 8 Accommodation, Plaintiff searched for alternate living conditions, as she felt she could not live 9 there any longer. However, at first due to the global COVID pandemic she found it very difficult to10 find an alternate residence that would accommodate her serious medical conditions/symptoms. But11 finally, after being told by her medical professional that she could not live at the Accommodation another day without risking her life, she moved. All of the facts herein stated constitute a12 constructive eviction of Plaintiff.13 98. Plaintiff suffered significant damages as a result of her constructive eviction,14 including all of her relocation expenses, medical costs caused by defendants’ failure to repair the15 conditions that violated Plaintiff’s quiet enjoyment of the Accommodation, as well as a civil penalty16 of $2,000 for each violation and damages for mental anguish, and punitive damages. (See Stoiber v.17 Honeychuck, 101 Cal. App. 3d 903, 926.)18 99. Wherefore, Plaintiff prays for judgment as set forth herein.19 SEVENTH CAUSE OF ACTION20 Negligence/Premises Liability21 (Against defendants 4247 LP and ABRA)22 100. Plaintiff hereby incorporates all previous paragraphs as if they have been fully stated23 herein.24 101. As the owners/property managers of Plaintiff’s residence (the Accommodation),25 defendants had a duty to prevent injury to Plaintiff through their acts or omissions. The owner of 1926 COMPLAINT 1 premises is under a duty to exercise ordinary care in the management of such premises in order to 2 avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence. 3 (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.) 4 102. Defendant 4247 LP owned the Accommodation and through its agent ABRA 5 controlled/managed the Accommodation. Defendants were negligent in their maintenance of the 6 Accommodation as set forth herein. 7 103. Defendants ABRA and 4247 LP breached their duty of care to Plaintiff by failing to 8 remedy the leaking water from her air conditioner, which caused the dangerous condition of a 9 puddle of standing water to constantly exist in her unit. At the end of April/early May of 202210 Plaintiff slipped in this puddle of water twice two days apart resulting in injury to her low back and11 right hand and wrist. When Plaintiff reported these injuries to defendants, they ignored her reports.12 104. In addition to these injuries, as a direct result of defendants’ actions as set forth13 herein, Plaintiff suffered from new injuries that arose throughout her tenancy at the14 Accommodation, including, but not limited to, neuropathy, an increase in her uncontrollable15 vomiting, internal tremors, inability to use her hands because of shaking tremors and pain, nerve16 damage, central nervous system damage, cognitive impairment, and Plaintiff’s inability to swallow17 food or water. Each of these injuries and conditions were caused by defendants’ failures to address18 Plaintiff’s repeated requests for accommodations due to her preexisting medical disabilities as well19 as defendants’ failure to repair and properly clean the air conditioner and its attached ducts in her20 unit and by their spraying chemicals inside her unit. Plaintiff hired an independent environmental21 investigator to test the particles in her apartment and discovered she was continually exposed to22 harmful mold (Stachybotrys), Cladosporium as well as dangerous PAH2 and P-Nitrophenol at a2324 2 Polycyclic Aromatic Hydrocarbons, a class of chemicals that occur naturally in coal, crude oil, and gasoline and that is25 also a chemical that causes neurological disorders. 2026 COMPLAINT 1 level of “considerable concern”3. (See Exhibit A.) In addition to pesticides and fungicides, P- 2 Nitrophenol also comes from vehicle exhaust. Plaintiff’s apartment was directly above the parking 3 garage for the 59-unit building, and the garage directly below her window only had a mesh screen 4 on it, causing the harmful vehicle exhaust to flow into her apartment constantly through the A/C 5 intake air ducts, which did not have an exterior air filter at all. Additionally, there was a large crack 6 in the cement ceiling of the garage directly below Plaintiff’s apartment which also contributed to the 7 vehicle exhaust entering her apartment. 8 105. While Plaintiff had some preexisting medical conditions prior to moving into the 9 Accommodation, including fragrance/scent sensitivity and temperature dysregulation, during the10 course of her residency there she went from being irritated by fragrances to collapsing in public if11 she was exposed to scents, or any chemicals including laundry detergent, pesticides, car exhaust,12 etc. Additionally, during Plaintiff’s residency at the Accommodation, as more fully set forth herein,13 her neuropathy symptoms began, including internal and external tremors/shaking, numbness in her14 extremities and inability to use her hands, teeth breaking, etc. as a result of her exposure to mold15 and the other dangerous chemicals that were present in her unit.16 106. Defendants’ negligent breach of their duty to Plaintiff was the direct/proximate cause17 of her damages, including, but not limited to, medical costs, loss of past and future income and pain18 and suffering.19 107. Wherefore, Plaintiff prays for judgment as set forth herein.20 EIGHTH CAUSE OF ACTION21 Intentional Infliction of Emotional Distress22 (Against ABRA, 4247 LP & Gorman)23 108. Plaintiff hereby incorporates all previous paragraphs as if they have been fully stated2425 3 P nitrophenol is a nerve agent causing severe nerve damage. 2126 COMPLAINT 1 herein. 2 109. Based on the foregoing facts, defendants’ conduct was outrageous and either 3 intended to cause Plaintiff emotional distress or engaged in with reckless disregard of the 4 probability that Plaintiff would
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Ruling
DIANA OFUNWA, AN INDIVIDUAL VS NARGIS DADA, AN INDIVIDUAL, ET AL.
Aug 02, 2024 |Renee C. Reyna |23STCV02698
Case Number: 23STCV02698 Hearing Date: August 2, 2024 Dept: 29 Motion to Compel the Deposition of Plaintiff Motion for Terminating Sanctions Tentative The motions are denied. Background On February 7, 2023, Diana Ofunwa (Plaintiff) filed a complaint against Nargis Dada, Iqbal Ahmed Dada (collectively Defendants), and Does 1 through 25, arising out of a motor vehicle accident on February 26, 2021. Defendants filed an answer on June 6, 2023. On February 14, 2024, Plaintiffs counsel was relieved as counsel. On April 24, 2024, the Court granted Defendants motion to compel and ordered Plaintiff to serve further responses to Defendants Form Interrogatories (Set One), Special Interrogatories (Set One), and Requests for Production (Set One). Plaintiff did not comply. (Barresi Decl., ¶ 5.) On May 5, 2024, Defendants filed a motion to compel Plaintiffs deposition. No opposition has been filed. The hearing was originally scheduled for July 19, 2024, and was continued by the Court to August 2. On May 28, 2024, Defendants filed a motion for terminating sanctions. No opposition has been filed. The hearing was originally scheduled for July 2, 2024, and was continued by the Court to August 2. Legal Standard Motion to Compel Deposition Any party may obtain discovery & by taking in California the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.) Code of Civil Procedure sections 2025.210 through 2025.280 provide the requirements for (among other things) what must be included in a deposition notice, when and where depositions may be taken, and how and when the notice must be served. The service of a deposition notice & 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. (Id., § 2025.280, subd. (a).) Section 2025.410, subdivision (a), requires any party to serve a written objection at least three days before the deposition if the party contends that a deposition notice does not comply with the provisions of sections 2025.210 through 2025.280. Section 2025.450, subdivision (a), provides: If, 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 deponents attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. Any such motion to compel must show good cause for the production of documents and, when a deponent has failed to appear, the motion must be accompanied by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance. (Id., subd. (b).) When a motion to compel is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) 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 circ*mstances make the imposition of the sanction unjust. (Id., § 2025.450, subd. (g)(1).) In Chapter 7 of the Civil Discovery Act, section 2023.010, subdivision (d), defines [m]isuses of the discovery process to include [f]ailing to respond to or to submit to an authorized method of discovery. Where a party or attorney has engaged in misuse of the discovery process, the court may impose a monetary sanction in the amount of the reasonable expenses, including attorneys fees, incurred by anyone as a result of that conduct. (Id., § 2023.030, subd. (a).) Motion for Terminating Sanctions When a plaintiff fails to obey an order compelling answers to interrogatories, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to, that sanction, the court may impose a monetary sanction under Chapter 7. (Code Civ. Proc., § 2030.290, subd. (c).) When a plaintiff fails to obey an order compelling responses to requests for production, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to, that sanction, the court may impose a monetary sanction under Chapter 7. (Code Civ. Proc., § 2031.300, subd. (c).) In Chapter 7 of the Civil Discovery Act, section 2023.030 provides for monetary, evidence, issue, and terminating sanctions for any misuse of the discovery process, [t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title. A misuse of the discovery process is defined to include (among other things) failing to respond or to submit to an authorized method of discovery; making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to a discovery request; disobeying a court order to provide discovery; and making or opposing, unsuccessfully, a motion to compel without substantial justification. (Code Civ. Proc., § 2023.010, subds. (d)-(h).) The Civil Discovery Act provides for an escalating and incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.) Discovery sanctions should be appropriate to and commensurate with the misconduct, and they should not exceed that which is required to protect the interests of the party entitled to but denied discovery. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) If a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse. (Ibid.; see also, e.g., Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.) Terminating sanctions should be used sparingly. (Doppes, supra, 174 Cal.App.4th at p. 992; R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal. App. 4th 486, 496.) 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, supra, 246 Cal.App.4th at p. 604.) But where discovery violations are 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. (Doppes, supra, 174 Cal.App.4th at p. 992.) Repeated and willful violations of discovery orders that prejudice the opposing party may warrant a terminating sanction. (Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 702; Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390; Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327; Lang v. Hachman (2000) 77 Cal.App.4th 1225, 1246; Collisson X Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617-1622.) The primary purpose of discovery sanctions is to obtain compliance with the Civil Discovery Act and the Courts orders. It is not to punish. (Newland v. Super. Ct. (1995) 40 Cal.App.4th 608, 613; Ghanooni v. Super Shuttle of Los Angeles (1993) 20 Cal.App.4th 256, 262.) A discovery sanction should not create a windfall for a party or place a party in a better position than it would have been if the opposing party had simply complied with its obligations under the Courts orders and the Civil Discovery Act. (Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1194; see also 2 Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023), ¶¶ 8:2214-2220.) A terminating sanction issued solely because of a failure to pay a monetary discovery sanction is never justified. (Newland, supra, 40 Cal.App.4th at p. 615.) Discussion Motion to Compel Deposition On February 9, 2024, Defendants served Plaintiffs then-counsel with a notice of Plaintiffs deposition, scheduled for March 14, 2024. (Barresi Decl., ¶¶ 4, 6.) Plaintiff did not object and did not appear. The Court finds Plaintiff was properly served with notice of the deposition and failed to appear. There is no evidence, however, that after the nonappearance, Defendants contacted the deponent to inquire about the nonappearance. This is required by statute to obtain an order compelling a party to appear for deposition. (Code Civ. Proc., § 2025.450(b).) Therefore, the Court must deny Defendants motion to compel Plaintiffs deposition. Motion for Terminating Sanctions Defendants seek terminating sanctions for Plaintiffs failure to provide responses to written discovery and follow the Courts order compelling responses. For terminating sanctions, a party must present evidence of repeated and willful misuse of the discovery process, as well as evidence that less severe sanctions have not (or likely will not) lead to compliance with the discovery rules. Defendants have not, on this record at this time, made such a showing. There has not been a showing of a history or pattern of willful abuse or repeated violations that have not been (or cannot be) cured by lesser sanctions. Moreover, a discovery sanction should not create a windfall for a party or place a party in a better position than it would have been if the opposing party had simply complied with its obligations under the Courts orders and the Civil Discovery Act. (Rutledge, supra, 238 Cal.App.4th at p. 1194.) Here, at this time, a terminating sanction would create such a windfall for Defendants as no lesser sanctions have been pursued. Defendants do not request lesser sanctions in this motion. Accordingly, the Defendants motion for terminating sanctions is DENIED. The denial as to terminating sanctions is without prejudice to Defendants seeking other sanctions or seeking a terminating sanction at a later stage of the proceedings, based on a further showing of misuse of the discovery process. Conclusion The Court DENIES Defendants motions to compel Plaintiff to appear for deposition. The Court DENIES Defendants motion for terminating sanctions. Moving Party is ordered to give notice.
Ruling
MICHELLE SOTO VS JOSEPH SHIRIAN, ET AL.
Jul 29, 2024 |Renee C. Reyna |22STCV29998
Case Number: 22STCV29998 Hearing Date: July 29, 2024 Dept: 29 Motion to Compel Shirian to Respond to Form Interrogatories Motion to Compel Shirian to Respond to Special Interrogatories Motion to Compel Shirian to Respond to Requests for Production of Documents Tentative The motions are granted. Background Two consolidated cases arise out of an automobile accident occurring on December 30, 2021, at or near the intersection of Saticoy Street and Canoga Avenue in Los Angeles. In the first filed and lead case (Case No. 22STCV29998), Michelle Soto (Soto) filed a complaint on September 14, 2022, against Joseph Shirian (Shirian), Blas Alducin Dominguez (Dominguez), and Does 1 through 50 for motor vehicle negligence and general negligence. On September 29, 2022, Dominguez filed an answer and cross-complaint against Shirian and Roes 1 through 10. On December 14, 2022, Shirian filed an answer to Sotos complaint, and a cross-complaint against Michelle Soto, Dominguez, Mariana Diazzamora, and Roes 1 through 25 In the second filed case (Case No. 22VECV02403), Shirian filed a complaint on December 14, 2022, against Soto, Dominguez, Mariana Diazzamora, and Does 1 through 50 for motor vehicle negligence and general negligence. On November 9, 2023, Dominguez and Mariana Diaz Zamora (erroneously sued as Mariana Diazzamora) filed an answer to Shirians complaint. The cases were related on July 28, 2023, and consolidated on May 7, 2024. As it relates to the matters before the Court and set for hearing on July 29, 2024, Dominguez served Shirian with Form Interrogatories (Set One) on December 6, 2023, and on the same day Dominguez and Diazzamora served Shirian with Special Interrogatories (Set One) and Requests for Production (Set One). (Goodwin Decls., ¶ 2 & Exhs. A.) Notwithstanding a three-month extension of time, Shirian never responded to the discovery. (Id., ¶¶ 3-4.) On May 24, 2024, Dominguez filed these three motion to compel Shirian to respond to the discovery requests. No opposition has been filed. On June 24, the motions came on for hearing, and based on the parties oral agreement the Court continued the hearing to July 29, 2024. (June 24, 2024 Minute Order.) Nothing has been filed since June 24. Legal Standard A party must respond to interrogatories within 30 days after service. (Code Civ. Proc., § 2030.260, subd.(a).) If a party to whom interrogatories are directed does not provide a timely response, the propounding party may move for an order compelling response to the interrogatories. (Id., § 2030.290, subd. (b).) There is no time limit for a motion to compel initial responses, and no meet and confer efforts are required. (See id., § 2030.290; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411.) Nor must a separate statement be filed. (Cal. Rules of Court, rule 3.1345(b)(1).) In addition, a party who fails to provide a timely response generally waives all objections. (Code Civ. Proc., § 2030.290, subd. (a).) When a party moves to compel initial responses to interrogatories, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes [the motion], unless it finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2030.290, subd. (c).) A party must respond to requests for production of documents within 30 days after service. (Code Civ. Proc., § 2031.260, subd.(a).) If a party to whom requests for production of documents are directed does not provide timely responses, the requesting party may move for an order compelling response to the demand. (Id., § 2031.300, subd. (b).) There is no time limit for a motion to compel initial responses, and no meet and confer efforts are required. (See id., § 2031.300; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411.) Nor must a separate statement be filed. (Cal. Rules of Court, rule 3.1345(b)(1).) In addition, a party who fails to provide a timely response generally waives all objections. (Code Civ. Proc., § 2031.300, subd. (a).) When a party moves to compel initial responses to requests for production, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes [the motion], unless it finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2031.300, subd. (c).) Requests for admission may be propounded on a party without leave of court 10 days after the service of the summons on, or appearance by that party, whichever occurs first. (Code Civ. Proc., § 2033.020(b).) In Chapter 7 of the Civil Discovery Act, Code of Civil Procedure section 2023.010, subdivision (d), defines [m]isuses of the discovery process to include [f]ailing to respond to or to submit to an authorized method of discovery. Where a party or attorney has engaged in misuse of the discovery process, the court may impose a monetary sanction in the amount of the reasonable expenses, including attorneys fees, incurred by anyone as a result of that conduct. (Code Civ. Proc., § 2023.020, subd. (a).) Discussion Dominguez served Shirian with Form Interrogatories, Special Interrogatories, and Request for Production on December 6, 2023. (Goodwin Decls., ¶ 2 & Exhs. A.) No responses have been received. (Id., ¶ 3, 4.) Dominguez need not show anything more. The motions to compel are GRANTED. Dominguez does not request sanctions. Conclusion The Court GRANTS the motions to compel. The Court ORDERS Shirian to serve verified, written, code compliant responses, without objection, to Dominguezs Form Interrogatories (Set One) within 15 days of notice. The Court ORDERS Shirian to serve verified, written, code compliant responses, without objection, to Dominguezs Special Interrogatories (Set One) within 15 days of notice. The Court ORDERS Shirian to serve verified, written, code compliant responses, without objection, to Dominguezs Request for Production of Documents (Set One) within 15 days of notice. Moving party is ORDERED to give notice.
Ruling
AKOP TOROSIAN ET AL VS ARUTYUN FITILCHYAN ET AL
Aug 02, 2024 |BC617479
Case Number: BC617479 Hearing Date: August 2, 2024 Dept: P [TENTATIVE] ORDER DENYING MOTION TO TAX COSTS I. INTRODUCTION This action was filed on April 18, 2016, and arises from a dispute that resulted in the shooting of several people. Plaintiffs Akop Torosian aka Jack Torosian, Robert Torosian, Marina Fermanyan and Elda Madatyan filed a complaint against Defendants Arutyun Fitilchyan, Hrachya Gasparyan, Armen Tashjian, Armen Jermakyan, and Ashon Mkitaryan. The complaint alleges eight causes of action for: 1) assault and battery, 2) conspiracy to commit assault and battery, 3) negligence, 4) loss of consortium, 5) abuse of process, 6) extortion and blackmail, 7) conspiracy to commit extortion and blackmail, and 8) intentional infliction of emotional distress. On February 8, 2024, the Court granted Defendants Fitilchyan and Gasparyans motion for terminating sanctions as to Plaintiffs Akop and Roberts complaint for failure to obey multiple court orders to respond to discovery. On March 11, 2024, Defendants Fitilchyan and Gasparyan filed their verified memorandum of costs in the amount of $2,420. On April 8, 2024, Robert filed a motion to tax costs. On July 24, 2024, Defendants Fitilchyan and Gasparyan filed an opposition. No reply has been filed. The motion to tax costs is denied as Plaintiffs motion is untimely and because he failed to meet his burden to present evidence and prove that the claimed costs are not recoverable. II. LEGAL STANDARD A prevailing party is entitled to recover costs, as a matter of right, in any action or proceeding absent a statute expressly noting otherwise. (Cal Civ. Proc. Code § 1032, subd. (b).) Unless a statute provides otherwise, a court has no discretion to deny costs to a prevailing party. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129). A prevailing party is (i) a party that receives a net monetary recovery, (ii) a defendant who obtains a dismissal in its favor (iii) a defendant, when neither the plaintiff nor defendant attained any relief and (iv) a defendant, where the plaintiff(s) obtains no recovery from the defendant. (Cal Civ. Proc. Code § 1032, subd. (a)(4).) If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. (Ladas v. California State Auto. Assn. (1993) 19 Cal. App. 4th 761, 774.) If the items appear to be proper expenses, they are themselves prima facie evidence that the costs, expenses and services were necessarily incurred. If the items appear proper, it is not enough for the losing party to attack submitted costs by arguing that he thinks the costs were not necessary or reasonable. Rather, the losing party has the burden to present evidence and prove that the claimed costs are not recoverable. (Seever v. Copley Press Inc. (2006) 141 Cal.App.4th 1550, 1557.) However, when items claimed as costs do not appear on their face as proper and necessary, and the items are properly challenged by a motion to tax costs, the burden of establishing the necessity of the items is on the party claiming them as costs. (See Id.; See also Whitney v. Whitney (1958) 164 Cal.App.2d 577, 585.) [I]f the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. (Ladas, 19 Cal.App.4th at 774.) III. DISCUSSION Plaintiff moves to tax costs. Defendants are the prevailing parties as their motion for terminating sanctions was granted. Plaintiff argues that the costs set forth in the memorandum of costs are excessive, unnecessary, and unrecoverable. Specifically, Plaintiff objects to the initial filing fees of $435 for each defendant. Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail or email, the period is extended as provided in Code of Civil Procedure section 1013.¿ (Cal. Rules of Court, rule 3.1700(b)(1).) Here, Defendants served the memorandum of costs by electronic service on March 11, 2024. (Memorandum of Costs POS.) Thus, this motion would have had to be filed 15 days plus two court days from March 11, 2024, which would be March 28, 2024. This motion was filed and served on April 8, 2024, making it untimely. In any event, as Defendants filed a verified memorandum of costs, the burden of showing that the costs sought were not reasonable or necessary is on Plaintiff. Plaintiff only makes conclusory assertions and offers no declarations or other evidence in support of his assertions. Plaintiffs failure to provide a declaration offers the Court no evidence from which to consider Plaintiffs claims. As discussed above, Plaintiff has the burden of proof to show that the item of cost was not reasonably necessary for the conduct of the litigation; mere conclusory assertions are insufficient to rebut the prima facie showing costs are proper. (See Jones v. Dumrichob (1998) 63 Cal.App.4th 1261, 1266; County of Kern v. Ginn (1983) 146 Cal.App.3d 1107, 1113-14.) In sum, the court finds that Plaintiff fails to meet his burden of proof. IV. CONCLUSION AND ORDER The motion to tax costs is denied. Defendants are to give notice of this ruling. Dated: August 2, 2024 JARED D. MOSES JUDGE OF THE SUPERIOR COURT
Ruling
SERAN NG, D.M.D, INC., A CALIFORNIA CORPORATION VS YANG LU
Aug 02, 2024 |20STCV49246
Case Number: 20STCV49246 Hearing Date: August 2, 2024 Dept: 53 Superior Court of California County of Los Angeles Central District Department 53 seran ng, d.m.d., inc. ; Plaintiff, vs. yang lu , et al.; Defendants. Case No.: 20STCV49246 Hearing Date: August 2, 2024 Time: 10:00 a.m. [tentative] Order RE: plaintiffs motion to compel further responses to special interrogatories, set twelve, and for monetary sanctions MOVING PARTY: Plaintiff Seran Ng, D.M.D., Inc. RESPONDING PARTY: Defendant Yang Lu Motion to Compel Further Responses to Special Interrogatories, Set Twelve, and for Monetary Sanctions[1] The court considered the moving, opposition, and reply papers filed in connection with this motion. EVIDENTIARY OBJECTIONS The court rules on plaintiff Seran Ng, D.M.D., Inc.s evidentiary objections, filed on May 24, 2024, as follows: Objections Nos. 1-4, 8-9, 11-12, 15, and 17 are overruled. Objections Nos. 5-7, 10, 13-14, 16, and 18 are sustained. DISCUSSION Plaintiff Seran Ng, D.M.D., Inc. (Plaintiff) moves the court for an order (1) compelling defendant Yang Lu (Defendant) to serve further responses to Plaintiffs Special Interrogatories, Set Twelve, numbers 143-153, and (2) awarding sanctions in favor of Plaintiff and against Defendant in the amount of $5,346.65. The court grants Plaintiffs motion to compel Defendants further responses to Special Interrogatories, Set Twelve, numbers 143-153 because the objections to those interrogatories are without merit. (Code Civ. Proc., § 2030.300, subd. (a)(3).) The court notes that Defendant has objected to these interrogatories on the ground that they exceed the limit of 35 specially prepared interrogatories. (Code Civ. Proc., § 2030.030, subd. (a)(1).) But (1) Plaintiff also served on Defendant a declaration that substantially complies with Code of Civil Procedure section 2030.050, and (2) the court denied Defendants motion for a protective order on June 28, 2024. (Chan Decl., Ex. A, p. 6; June 28, 2024 Order, p. 5:2.) The court grants Plaintiffs request for monetary sanctions against Defendant. (Code Civ. Proc., § 2030.300, subd. (d).) The court finds that $2,186.65 ((5 hours x counsels $425 hourly rate) + $61.65 motion filing fee) is a reasonable amount of monetary sanctions to impose against Defendant in connection with this motion. (Chan Decl., ¶¶ 25-27). The court denies Defendants request for monetary sanctions against Plaintiff. (Code Civ. Proc., § 2030.300, subd. (d).) ORDER The court grants plaintiff Seran Ng, D.M.D., Inc.s motion to compel further responses to special interrogatories and for monetary sanctions. Pursuant to Code of Civil Procedure section 2030.300, the court orders defendant Yang Lu to serve further, full and complete answers to plaintiff Seran Ng, D.M.D., Inc.s Special Interrogatories, Set Twelve, numbers 143-153, which comply with Code of Civil Procedure sections 2030.210-2030.250, within 20 days of the date of service of this order. The court orders defendant Yang Lu to pay monetary sanctions to plaintiff Seran Ng, D.M.D., Inc. in the amount of $2,186.65 within 30 days of the date of service of this order. The court orders plaintiff Seran Ng, D.M.D., Inc. to give notice of this ruling. IT IS SO ORDERED. DATED: August 2, 2024 _____________________________ Robert B. Broadbelt III Judge of the Superior Court [1] On June 3, 2024, the court issued an order continuing the hearing on this motion to August 2, 2024, so that it could be heard after the court ruled on the motion for protective order filed by defendant Yang Lu. (June 3, 2024 Order, p. 2:4-8.) On June 28, 2024, the court issued an order denying defendant Yang Lus motion for protective order. (June 28, 2024 Order, p. 5:2.)
Ruling
Jul 29, 2024 |22STCV30388
Case Number: 22STCV30388 Hearing Date: July 29, 2024 Dept: 32 PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that partys intention to submit. The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. TENTATIVE RULING DEPT: 32 HEARING DATE: July 29, 2024 CASE NUMBER: 22STCV30388 MOTIONS: (1) Motion to be Relieved as Counsel for Destin Rogers (2) Motion to be Relieved as Counsel for Brittni Aprea MOVING PARTY: Plaintiffs Counsel OPPOSING PARTY: None BACKGROUND Plaintiffs Destin Rogers and Brittni Aprea (Plaintiffs) counsel of record, Dordulian Law Group (Counsel), moves to be relieved as counsel for Plaintiffs. No opposition has been filed for this motion. LEGAL STANDARD To be granted relief as counsel, counsel must comply with California Rules of Court (CRC) 3.1362. Even where grounds for termination exist, attorneys seeking to withdraw must comply with the procedures set forth in California Rule of Professional Conduct (CRPC) 3.700 and are subject to discipline for failure to do so. CRPC 3.700(B) lists various grounds for mandatory withdrawal. An attorney's right to terminate the attorney-client relationship and withdraw from a case is not absolute. (See Vann v. Shilleh (1975) 54 Cal.App.3d 192, 197; People v. Prince (1968) 268 Cal.App.2d 398.) The decision whether to grant or deny an application for withdrawal is within the court's discretion, and it does not abuse that discretion by denying the application on the ground that the attorney's withdrawal would work injustice upon a third party. (Hodcarriers, Bldg. and Common Laborers Local Union No. 89 v. Miller (1966) 243 Cal.App.2d 391.) The rules have been liberally construed to protect clients. (Vann v. Shilleh, supra, 54 Cal.App.3d 192.) An attorney, either with client's consent or court's approval, may withdraw from a case when withdrawal can be accomplished without undue prejudice to client's interests; however, an attorney shall not withdraw from employment until the member has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel, complying with rule 3-700(D), and complying with applicable laws and rules. (CRPC 3.700(A)(2).) A lawyer violates his or her ethical mandate by abandoning a client (Pineda v. State Bar (1989) 49 Cal.3d 753, 758 759), or by withdrawing at a critical point and thereby prejudicing the clients case. (CRPC 3.700(A)(2); Vann v. Shilleh, supra.) DISCUSSION Counsel has filed forms MC-051 and MC-052 and has lodged with the Court a copy of the proposed order on form MC-053 as required. (Cal Rules of Court, rule 3.1362.) The Court finds a valid basis for withdrawal. Accordingly, the Court GRANTS the motions to relieve counsel. Counsel shall provide notice of the Courts ruling and file proofs of service of such.
Ruling
OLIVIA MIZRAHI, ET AL. VS SAMUEL KARCHMER, ET AL.
Aug 02, 2024 |Renee C. Reyna |21STCV25441
Case Number: 21STCV25441 Hearing Date: August 2, 2024 Dept: 29 Motion to Compel Deposition of Plaintiff Olivia Mizrahi Motion to Compel Deposition of Plaintiff Golda Mizrahi Motion to Compel Deposition of Plaintiff Yaron Mizrahi Motion to Continue Trial Tentative The three motions to compel are denied without prejudice. The motion to continue trial is denied without prejudice. Background On July 9, 2021, Plaintiffs Olivia Mizrahi, Golda Mizrahi, Yaron Mizrahi, Lian Beysson, and Shayla Beysson filed a complaint against Defendants Samuel Karchmer, Donald Karchmer (collectively, Defendants), and Does 1 through 50, asserting causes of action for motor vehicle negligence and general negligence arising out of an accident on July 9, 2019, at or near the intersection of Beverly Drive and South Santa Monica Boulevard. Defendants filed their answer on April 26, 2022. On July 1, 2024, Defendants filed these four motions: motions to compel the depositions of Olivia Mizrahi, Golda Mizrahi, Yaron Mizrahi, and a motion to continue trial. No opposition has been filed. Legal Standard Motion to Compel Deposition Any party may obtain discovery & by taking in California the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.) Code of Civil Procedure sections 2025.210 through 2025.280 provide the requirements for (among other things) what must be included in a deposition notice, when and where depositions may be taken, and how and when the notice must be served. The service of a deposition notice & 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. (Id., § 2025.280, subd. (a).) Section 2025.410, subdivision (a), requires any party to serve a written objection at least three days before the deposition if the party contends that a deposition notice does not comply with the provisions of sections 2025.210 through 2025.280. Section 2025.450, subdivision (a), provides: If, 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 deponents attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. Any such motion to compel must show good cause for the production of documents and, when a deponent has failed to appear, the motion must be accompanied by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance. (Id., subd. (b).) When a motion to compel is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) 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 circ*mstances make the imposition of the sanction unjust. (Id., § 2025.450, subd. (g)(1).) In Chapter 7 of the Civil Discovery Act, section 2023.010, subdivision (d), defines [m]isuses of the discovery process to include [f]ailing to respond to or to submit to an authorized method of discovery. Where a party or attorney has engaged in misuse of the discovery process, the court may impose a monetary sanction in the amount of the reasonable expenses, including attorneys fees, incurred by anyone as a result of that conduct. (Id., § 2023.030, subd. (a).) Motion to Continue Trial Code of Civil Procedure section 128, subdivision (a)(8), provides that the court has the power to amend and control its process and orders so as to make them conform to law and justice. The power to determine when a continuance should be granted is within the discretion of the trial court. (Color-Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599, 1603.) A trial court has wide latitude in the matter of calendar control including the granting or denying of continuances. (Park Motors, Inc. v. Cozens (1975) 49 Cal.App.3d 12, 18.) To ensure the prompt disposition of civil cases, the dates assigned for trial are firm. All parties and their counsel must regard the date set for trial as certain. (Cal. Rules of Court, rule 3.1332(a).) Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. (Cal. Rules of Court, rule 3.1332(c).) The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. (Ibid.) Circ*mstances that may support a finding of good cause include: (1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circ*mstances; (2) The unavailability of a party because of death, illness, or other excusable circ*mstances; (3) The unavailability of trial counsel because of death, illness, or other excusable circ*mstances; (4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice; (5) The addition of a new party if: (A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or (B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case; (6) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or (7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial. (Cal. Rules of Court, rule 3.1332(c).) In ruling on a motion or application for continuance, the court must consider all the facts and circ*mstances that are relevant to the determination. (Cal. Rules of Court, rule 3.1332(d).) California Rules of Court, rule 3.1332(d) sets forth a non-exhaustive list of factors that the court may consider: (1) The proximity of the trial date; (2) Whether there was any previous continuance, extension of time, or delay of trial due to any party; (3) The length of the continuance requested; (4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance; (5) The prejudice that parties or witnesses will suffer as a result of the continuance; (6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; (7) The court's calendar and the impact of granting a continuance on other pending trials; (8) Whether trial counsel is engaged in another trial; (9) Whether all parties have stipulated to a continuance; (10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and (11) Any other fact or circ*mstance relevant to the fair determination of the motion or application. (Cal. Rules of Court, rule 3.1332(d).) Discussion Motions to Compel Depositions On April 21, 2022, Defendants noticed the depositions of Yaron Mizrahi for August 23, 2022; Golda Mizrahi for August 25; and Olivia Mizrahi for August 31. (Farazian Decls., ¶ 3.) Objections to these depositions were served on August 18, 2022. (Id., ¶ 4.) On February 12, 2024, Defendants noticed the depositions of Olivia and Golda Mizrahi for April 3, 2024, and Yaron Mizrahi for April 4. (Id., ¶ 8.) Plaintiffs counsel advised Defendants that the deponents were not available on those dates. (Id., ¶ 9.) On June 7, 2024, Defendants noticed the depositions of Olivia and Golda Mizrahi for June 19, 2024, and Yaron Mizrahi for June 20. (Id., ¶ 10.) The three deponents did not object and did not appear. (Id., ¶¶ 10, 12.) Defendants have shown that they noticed the depositions and the three deponents did not object or appear. But Defendants have not shown that after the nonappearance, they contacted the deponent to inquire about the nonappearance. (Code Civ. Proc., 2025.450, subd. (b).) That required in a motion to compel, and it is missing here. Accordingly, the three motions to compel are denied without prejudice. Motion to Continue Defendants motion to continue to trial is premised upon the success of their motions to compel: Defendants argue that once their motions are granted, they will need sufficient time to take the depositions and then conduct any necessary follow-up discovery. As set forth above, however, the motions to compel are denied without prejudice. Accordingly, the motion to continue trial is also denied without prejudice. On this record, and in the absence of orders granting their motions to compel, there is not a basis for the Court to find good cause for a continuance. The case has been at issue for more than two years, and it is unclear why discovery was not completed (with the assistance of the Court if necessary) long ago. Accordingly, Defendants motion to continue trial is denied without prejudice. Conclusion The Court DENIES WITHOUT PREJUDICE the Motions to Compel Plaintiffs Olivia Mizrahi, Golda Mizrahi, and Yaron Mizrahi to Appear for Deposition. The Court DENIES WITHOUT PREJUDICE Defendants Motion to Continue Trial. Moving party is ORDERED to give notice.
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