Judge: Joel L. Lofton, Case: 20GDCV00609, Date: 2023-04-26 Tentative Ruling



Case Number: 20GDCV00609    Hearing Date: September 14, 2023    Dept: X

   Tentative Ruling

 

Judge Joel L. Lofton, Department X

 

 

HEARING DATE:      September 14, 2023                            TRIAL DATE: April 23, 2024

                                                          

CASE:                         LIDD ENTERPRISES INC., DANNY LAO, BESSIE LAO, individually and as Trustees of the DANNY AND BESSIE LAO FAMILY TRUST DATED MAY 5, 2005, v. AUTO BUYLINE SYSTEMS INC., ABS AUTO AUCTIONS, REMARKETIMS INC., OPENTRADE INC., CLEARMARKET INC., AUCTIONLANE INC., ABS OPEN TRADE INC., KEVIN AZZOUZ, MIKE RHEE AND LENNARD MENGWALL AND DOES 1 through 100, inclusive.

 

CROSS:                      AUTO BUYLINE SYSTEMS, INC. dba ABS AUTO AUCTIONS, v. LIDD ENTERPRISES INC., a California Corporation; DANNY LAO, an individual; KEVIN AZZOUZ, an individual; MIKE RHEE, an individual; REMARKETIMS INC., a Delaware Corporation; OPENTRADE INC., a Delaware Corporation; CLEARMARKET INC. a Delaware Corporation; AUCTIONLANE, INC., a Delaware Corporation; ABS OPENTRADE, INC., a Delaware corporation; LENNART MENGWALL, an individual and ROES 1-20, inclusive.

 

CASE NO.:                 20GDCV00609

 

           

 

MOTION FOR TERMINATING SANCTIONS

 

MOVING PARTY:               Defendant and Cross-Complainant Auto Buyline Systems, Inc (“Cross-Complainant”)

 

 

RESPONDING PARTY:      No response filed.

 

SERVICE:                              Filed July 24, 2023

 

RELIEF REQUESTED

 

             Cross-Complainant seeks terminating sanctions against Cross-Defendant Kevin Azzouz (“Azzouz”).

 

BACKGROUND

 

             On June 15, 2021, Plaintiffs Lidd Enterprises Inc. (“LEI”), Danny Lao (“Danny”), and Bessie Lao (“Plaintiffs”) filed a third amended complaint on August 11, 2022, alleging elevent causes of action for (1) breach of contract, (2) waste, (3) negligence, (4) common count, (5) breach of oral agreement, (6) promissory estoppel, (7) conversion, (8) reformation, (9) fraudulent conveyance, (10) fraudulent conveyance, (11) aiding and abetting.

 

            On May 10, 2021, Cross-Complainant Auto Buyline Systems, Inc. (“Cross-Complainant”) filed a first amended cross-complaint against LEI, Danny, Kevin Azzouz (“Azzouz”), Mike Rhee (“Rhee”), RemarketIMS Inc., (“RemarketIMS”), OpenTrade, Inc. (“OpenTrade”), Clearmarket Inc., Auction Lane, Inc., ABS OpenTrade, Inc., and Lennart Mengwall, alleging six causes of action for (1) declaratory relief, (2) breach of contract, (3) equitable indemnity, (4) implied contractual indemnity, (5) waste, and (6) promissory estoppel.

 

TENTATIVE RULING

 

            Cross-Complainant’s motion for terminating sanctions against Azzouz is GRANTED.

 

            Azzouz’s answer to Cross-Complainant’s first amended cross-complaint is ordered stricken.

 

            Cross-Complainant’s requests for monetary sanctions is DENIED.

 

DISCUSSION

 

            Cross-Complaint provides it served its discovery requests on various Cross-Defendants, including Azzouz, on December 9, 2021. (Harvey Decl. ¶ 3.) Azzouz failed to provide discovery responses. (Id. ¶ 4.) On May 17, 2022, Cross-Complaint’s motion to compel discovery responses was granted, and Azzouz was ordered to provide responses within 30 days. Cross-Complainant provides that Azzouz failed to comply with the court’s order. (Id. ¶ 8.) Cross-Complainant filed a motion for terminating sanctions against Azzouz on October 14, 2022, which was ultimately denied. Cross-Complainant provides that on November 9, 2022, Azzouz provided deficient discovery responses. (Id. ¶ 11.) On February 3, 2023, Cross-Complainant filed a motion to compel further responses. (Id. ¶ 15.)

 

            Cross-Complainant’s motion to compel further responses was granted on April 26, 2023, and court awarded Cross-Complainants $8,598.75 in sanctions. Cross-Complainants provides it never received any discovery responses or the ordered sanctions. (Harvey Decl. ¶ 20.) Cross-Complainant provides that it has not heard back from Azzouz despite its efforts to contact him. (Id. ¶ 23.)

 

            Section 2023.030 authorizes a trial court to impose monetary sanctions, issue sanctions, evidence sanctions, or terminating sanctions against ‘anyone engaging in conduct that is a misuse of the discovery process.’ ” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991.) “The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.” (Id. at p. 992.)

 

            Code of Civil Procedure section 2023.030, subdivision (d) provides that a court may impose terminating sanctions 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.”

 

A decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.” (Mileikowsky v. Tenent Healthsystem (2005) 128 Cal.App.4th 262, 279-280 “Mileikowsky”.)

 

            Cross-Complainant seeks an order striking Azzouz’s answer. Under the circumstances, terminating sanctions are warranted. Azzouz has failed to appropriately respond to Cross-Complainant’s discovery responses dating back to December 9, 2021. Azzouz failed to timely comply with the court’s initial order compelling a discovery response and failed to comply at all with the court’s order compelling further responses. Azzouz has failed to engage in the discovery process and has failed to comply with court orders.

 

CONCLUSION

 

            Cross-Complainant’s motion for terminating sanctions against Azzouz is GRANTED.

 

            Azzouz’s answer to Cross-Complainant’s first amended cross-complaint is ordered stricken.

 

            Cross-Complainant’s requests for monetary sanctions is DENIED.

 

 

            Moving Party to give notice.

 

           

Dated:   September 14, 2023                                      ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court