Sunwest Bank vs. Encino Towers, LLC

4. 30-2023-01329501- Before the Court are two (2) Motions for Issue, Evidentiary, CU-BC-CJC or Terminating Sanctions brought by Plaintiff Sunwest Bank (“Plaintiff”) against Defendant Kaysan Sunwest Bank vs. Ghasseminejad (“Defendant”). ROAs 759, 763. Encino Towers, Plaintiff seeks an order, pursuant to California Code of LLC Civil Procedure Sections 2023.030(a)-(c), 2023.030(d)(1), 2023.030(d)(4), 2030.300(e), 2031.310(i), 2030.300(e), 2031.320(c), and 2033.290(e), imposing issue and evidentiary sanctions against Defendant and preventing Defendant from introducing evidence related to Plaintiff’s claims, including damages, or, in the alternative, imposing terminating sanctions against Defendant and entering default against Defendant as to Plaintiff’s claims. ROA 759, p.2; ROA 763, p.2.

Relevant Timeline of Events

On March 21, 2025, Plaintiff propounded their first set of written discovery upon Defendant. ROA 763, Exhs. A-C; ROA 759, Exh. A. At that time, Defendant was represented by counsel. ROA 499, p.5

On July 11, 2025, Plaintiff served Defendant with motions to compel initial responses, by mail and email. ROAs 532, 534.

On July 16, 2025, the parties were served with notice of the Court’s order to appear for an Informal Discovery Conference (“IDC”) on August 6, 2025. ROA 550.

On August 8, 2025, neither Defendant nor Defendant’s counsel appeared for the IDC as ordered. See ROA 576, p.3. Consequently, the Court continued the IDC to August 27, 2025. Id. Both parties were provided notice of the continuance on August 13, 2025. Id., p.1.

On August 25, 2025, the Court granted Defendant’s counsel’s Motion to be Relieved as Counsel (“MRC”). ROA 478. The Order was effective as of August 29, 2025, when Defendant was served with notice. Id. Defendant has since, and remains, in pro per.

On August 27, 2025, there were again no appearances by

Defendant or Defendant’s counsel at the IDC. ROA 606. Therein, the Court once again continued the IDC to October 29, 2025. Id. The parties present waived notice, and the Court therefore did not provide notice to Defendant. Id.

On September 3, 2025, the Notice of Ruling granting Defendant’s Attorney’s MRC was filed with the Court. ROA 594. It was thereafter served upon Plaintiff on September 8, 2025. ROA 615.

On October 10, 2025, upon Cross-Defendant Preferred Bank’s motion, the Court vacated Preferred Bank’s motions and reiterated that the IDC remained set for October 29, 2025. ROA 643. Notice of the Court’s order was not properly served upon Defendant. ROA 644, p.1.

On October 28, 2025, the Court noted the parties’ failure to file Joint Letter Brief no later than three (3) court days prior to the IDC, as ordered (ROA 643). ROA 659. Accordingly, the Court continued the IDC and all motions, and set an Order to Show Cause (“OSC”) re: Defendant’s Failure to Comply with Court’s Order, to November 25, 2025. ROA 659. Again, Defendant was not properly served with notice of the Court’s order. ROA 660.

On November 11, 2025, the Court, sua sponte, noted that Defendant was not served with the Court’s October 28, 2025, Order. ROA 677. Accordingly, the Court continued the IDC, the OSC, and all motions to December 30, 2025. The Court served Defendant with notice by mail on November 20, 2025. ROA 678.

On December 30, 2025, Defendant predictably failed to appear for IDC as ordered. ROA 684. Consequently, the Court granted all of Plaintiff’s motions, imposed monetary discovery sanctions upon Defendant in the amount of $3,687.50, and an additional monetary sanction of $200 upon Defendant for failure to comply with the Court’s order. Id. Plaintiff served Defendant with notice of the Court’s ruling on January 5, 2026, by mail. ROA 763, Exh. E.

The Court’s Order specified that Defendant must pay the monetary discovery sanctions to Plaintiff’s counsel,

Buchalter LLP, within sixty (60) days of receiving notice of the Court’s order (March 6, 2026), and the Court’s sanctions to the Court no later than February 27, 2026. ROA 684. The Court’s order did not, however, specify when Defendant was to provide initial responses to Plaintiff’s discovery demands. Id.

On June 5, 2026, having received neither payment of sanctions nor initial responses, as ordered by the Court, Plaintiff served Defendant with notice of the herein Motions for Issue, Evidentiary, or Terminating Sanctions. ROAs 768, 772.

The Court notes that the foregoing sequence of events indicates Defendant may not have had proper notice of the Court’s August 27, 2025, Order continuing the IDC to October 10, 2025, and demanding an updated JLB. Thus, the Court’s sanctions upon Defendant for failure to file the JLB are potentially improper. However, because today's order vacates the prior order imposing discretionary sanctions for Defendant's failure to comply with that order and instead imposes terminating sanctions, the issue of whether Defendant received notice of the requirement to file the JLB is moot. See infra.

Discretionary Sanctions for Misuse of the Discovery Process

“California discovery law authorizes a range of penalties, including monetary, issue, evidence, and terminating sanctions, for conduct amounting to ‘misuse of the discovery process.’” Doppes v. Bentley Motors, Inc., 174 Cal. App. 4th 967, 991 (2009); Cal. Civ. Proc. Code §§ 2023.030(b)-(d), 2030.290(c), 2031.300(c).

“The trial court has broad discretion in selecting discovery sanctions, subject to reversal only for abuse. Doppes, supra, 174 Cal. App. 4th at 992 (citing Reedy v. Bussell, 148 Cal. App. 4th 1272, 1294 (2007). In choosing a sanction, “[t]he trial court should consider both the conduct being sanctioned and its effect on the party seeking discovery.” Doppes, supra, 174 Cal. App. 4th at 992.

Under California Code of Civil Procedure Section 2023.030,

courts may impose terminating sanctions by way of striking all or parts of the pleadings, staying proceedings by the offending party until the court’s discovery orders are obeyed, dismissing all or part of the offender's action, or rendering a judgment by default against the offending party. Cal. Civ. Proc. Code § 2023.030(d).

“The courts have long recognized that the terminating sanction is a drastic penalty and should be used sparingly.” Lopez v. Watchtower Bible and Tract Soc’y of N.Y., 246 Cal. App. 4th 566, 604 (2016). Proportionality is critical when it comes to terminating sanctions because they altogether deny the non-compliant party a hearing on the merits and thus implicate due process. Id.

To ensure proportionality, trial courts should generally take an “incremental” approach—that is, they should “attempt[] less severe alternative[] [sanctions]” unless the “record clearly shows lesser sanctions would be ineffective.” Id. (emphasis added).

While a decision to order terminating sanctions should not be made lightly, “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. Tenet Healthsystem, 128 Cal. App. 4th 262, 279-280 (2005). Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed even just one discovery order. See Lang v. Hochman, 77 Cal. App. 4th 1225, 1244 (2000) (citing Collisson & Kaplan v. Hartunian, 21 Cal. App. 4th 1611 (1994)).

“Only two facts are absolutely prerequisite to imposition of the [nonmonetary] sanction: (1) there must be a failure to comply . . . and (2) the failure must be willful.” Calvert Fire Ins. Co. v. Cropper, 141 Cal. App. 3d 901, 904 (1983); e.g., Midwife v. Bernal, 203 Cal. App. 3d 57, 62-63 (1988).

Willfulness in the context of nonmonetary sanctions means a “conscious or intentional failure to act, as distinguished from accidental or involuntary noncompliance . . . .” Deyo v.

Kilbourne, 84 Cal. App. 3d 771, 787-788 (1978). “Lack of diligence may be deemed willful in the sense that the party understood his obligation, had the ability to comply, and failed to comply.” Id. at 787. See Housing Authority v. Gomez, 26 Cal. App. 3d 366, 372-73 (1972) (stating that a court may “justifiably conclude that [a party] ha[s] no intention of being deposed and would continue to engage in evasive tactics to achieve that end” where the party has already failed to appear for deposition and respond to discovery requests, including by disobeying a court order to do so).

Here, Defendant failed to appear to two (2) properly noticed IDCs (ROAs 576, 684), failed to comply with the Court’s order to provide responses to Plaintiff’s discovery, and failed to pay monetary discovery sanctions as ordered. ROAs 576, 684. Further, Defendant has failed to participate in these discovery proceedings or file any required papers at any stage. Although the Court notes initial deficiencies in service, those deficiencies were cured, and Defendant ultimately received proper notice of these proceedings. Accordingly, the Court finds that Defendant's noncompliance was neither accidental nor involuntary, but willful.

The Court has imposed lesser sanctions to compel compliance, to no avail. Thus, the Court is convinced that less severe sanctions will not compel compliance and would be futile.

Accordingly, Defendant’s Motions for terminating sanctions against Defendant are GRANTED, and Defendant’s Answer (ROA 375) and Cross Complaint (ROA 378) as to Defendant are STRICKEN.

Plaintiff is ORDERED to proceed by way of default pursuant to California Code of Civil Procedure Section 585.

Additionally, the Court VACATES its prior orders only as to the imposition of discretionary monetary sanctions for failure to comply with the Court’s order to file a Joint Letter Brief (ROA 684).

The Court orders Clerk to give notice.