Filed 10/7/13 Bayati v. Town Square M Properties CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

KAHTAN BAYATI, as Trustee etc., B245695

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. KC058874) v.

TOWN SQUARE M. PROPERTIES LLC,

et al.,

Defendants and Respondents.

APPEAL from an order of the Superior Court of Los Angeles County,

Robert A. Dukes, Judge. Dismissed.

Kahtan Bayati, in pro. per., for Plaintiff and Appellant.

Law Offices of Brian C. Pearcy and Brian C. Pearcy for Defendants and

Respondents.

_______________________________________ Kahtan Bayati, Trustee of the Kahtan Bayati Living Trust, dated June 17, 1997,

(Bayati) appeals an order imposing $6,000 in discovery sanctions against him in favor

of respondent Town Square M. Properties, LLC (Town Square).1 Bayati contends that

the imposition of sanctions was unreasonable and constituted an abuse of discretion.

We conclude that the order awarding sanctions is not appealable and dismiss the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

The trial court proceedings as evidenced by the limited record before the court

were as follows.2 On June 3, 2010, Bayati filed a complaint for rescission, reformation

of contract, fraud, waste, negligence, and injunctive and declaratory relief arising from

his lease of property (Property) in the City of Pomona to Town Square. Town Square

owned the adjacent property where it operated a gas station. The complaint alleged that

Town Square‟s agent represented to Bayati that it intended to lease the Property to allow

tanker trucks to have more convenient access to the gas station but that Town Square

then used the Property in an unauthorized manner. Town Square attempted to develop

a car wash and fast food restaurant on the Property, and stored construction machinery

and vehicles there, allegedly causing hazardous substances to leak into the soil.

Town Square cross-complained against Bayati alleging that he had breached the

lease by (1) refusing to execute documents in connection with Town Square‟s attempts

1 Although the notice of appeal is ambiguous as to whether Bayati is appealing in his status as trustee, we assume that he is. 2 Appellant‟s index does not provide a complete record of the proceedings below and often does not include file-stamped documents. Therefore, we leave out the dates of events where there is no supporting record.

2 to sublet the Property to a fast food restaurant chain; (2) refusing to allow Town Square

to develop the Property; (3) refusing to promptly provide government notices or

authorize government entities to provide these notices directly to Town Square;

(4) making false accusations of lease violations against Town Square, including

accusations of hazardous waste dumping, failure to secure appropriate insurance, and

encroachment; (5) providing documents purporting to evict Town Square and terminate

the lease, when Town Square was fully performing on the lease and there was no legal

basis for doing so; and (6) falsely representing to Town Square‟s insurance agent and

carrier that Town Square had been evicted from the Property.

Bayati demurred to the cross-complaint and, on October 13, 2010, Town Square

filed a first amended cross-complaint. On January 18, 2012, Town Square filed

a second amended cross-complaint adding two new parties and new allegations of fraud

and other misconduct. On February 28, 2012, the court re-opened discovery between

the original parties only as to the new allegations in the second amended

cross-complaint. Town Square thereafter propounded form and special interrogatories,

requests for admissions and requests for production of documents on Bayati, and Bayati

served responses.

1. Special Interrogatories

On August 1, 2012, counsel for Town Square sent a letter to Bayati demanding

supplemental responses to the special interrogatories within ten days. Town Square

argued that Bayati‟s responses were inadequate because they merely objected to the

special interrogatories on the grounds that they were mis-labeled as “set two” when they

3 were, in fact, “set three.” Bayati responded by letter and argued that Town Square was

required to re-serve the interrogatories with the correct labeling. Town Square filed

a motion to compel further requests and requested monetary sanctions in the amount of

$4,772.50.

2. Form Interrogatories

On August 20, 2012, counsel for Town Square sent a letter to Bayati demanding

supplemental responses to form interrogatories numbers 15.1 and 17.1 within ten days.

Town Square argued that Bayati‟s response to number 15.1 − objecting on the grounds

that the request was “ambiguous” because it did not specify which “pleading” Bayati

should address − was inadequate and that Bayati was required to provide a supplemental

response with respect to the new allegations made in the second amended

cross-complaint. Town Square argued that Bayati‟s response to number 17.1 was

inadequate because the response improperly incorporated prior responses.

Bayati responded by letter and asked Town Square to identify each new

allegation in the second amended cross-complaint that Town Square wanted Bayati to

address in his response to number 15.1. Bayati also stated that Town Square‟s request

that he separately state his responses to number 17.1 was “unreasonable, vexatious,

argumentative and burdensome.” Town Square filed a motion to compel further

requests and requested monetary sanctions in the amount of $4,805.

3. Demands for Inspection and Production

On August 20, 2012, counsel for Town Square sent a letter to Bayati requesting

supplemental responses to the requests for production within ten days. Town Square

4 argued that Bayati‟s responses did not comply with the Code of Civil Procedure for

a variety of reasons, including that Bayati was required to produce documents he

claimed were in the possession of his former counsel. On August 24, 2012, Bayati

responded by letter and argued that Town Square was required to re-serve the requests

for documents because the instruction portion erroneously referred to “interrogatories”

instead of “requests for production.” Town Square filed a motion to compel further

responses and requested monetary sanctions in the amount of $3,667.50.

4. The Trial Court’s Ruling

On October 24, 2012, the court granted the three motions, ordered Bayati to

serve further responses to the subject discovery requests within ten days, and imposed

sanctions against Bayati “in the reduced sum of $6,000.00.” Bayati appealed.

CONTENTIONS

Bayati contends that the court abused its discretion in awarding monetary

sanctions to Town Square because Bayati acted reasonably in responding to the subject

discovery requests.

DISCUSSION

An order imposing monetary sanctions is not appealable prior to entry of final

judgment unless the amount of sanctions exceeds $5,000. (Code of Civil Procedure,

section 904.1, subdivision (a)(12) [a party may appeal from “an order directing payment

of monetary sanctions by a party or an attorney for a party if the amount exceeds five

thousand dollars ($5,000)”]; Rail-Transport Employees Assn. v. Union Pacific Motor

Freight (1996) 46 Cal.App.4th 469, 474.).

5 We must first decide if an order directing the payment of $6,000 in sanctions in

connection with the court‟s decision to grant three motions to compel further responses

to discovery is appealable. Town Square argues that the court‟s sanction award was

allocated between the three motions in the amount of $2,000 per motion such that the

amount awarded per motion is less than the $5,000 threshold requirement on appeal.

Bayati argues that the trial court did not “prorate the sanctions amount” and that the

sanctions award should be considered an aggregated sum for the purpose of meeting the

$5,000 statutory minimum.

The minute order supports Town Square‟s position that the $6,000 sanctions

award was split over three motions. The order provided that the court was awarding

sanctions in “a reduced sum of $6,000.” (Emphasis added.) Thus, the amount

represented a “sum” of separate awards. In addition, as Town Square had moved for

sanctions in amounts of $3,667.50, $4,772.50 and $4,805 per motion, that the award

was “reduced” indicates that the court awarded amounts less than those requested and,

thus, less than $5,000 each.

Bayati argues that we should aggregate the three sanctions awards for the

purpose of meeting the statutory minimum, citing to dicta in Champion/L.B.S.

Associates Development Co. v. E-Z Serve Petroleum Marketing, Inc. (1993)

15 Cal.App.4th 56. The Champion court hypothesized that in situations where a party

simultaneously propounds three requests for discovery and then files “a motion (or

perhaps two or three motions) to compel further discovery,” if the court “issues three

separate sanction awards” sanctioning “the same conduct . . . three times,”

6 “ „aggregation‟ would be proper.” (Id. at pp. 59-60.) Even if we were to follow the

Champion dicta, here, each of the motions was based on distinct misconduct by Bayati

in responding to the different sets of discovery requests. Furthermore, the Champion

court‟s holding also supports the conclusion that the awards should not be aggregated

here: the Champion court held that discovery sanctions that arose out of two separate

motions could not be aggregated to reach the statutory minimum for an appeal where

the underlying conduct giving rise to the imposition of sanctions for each motion was

separate and distinct.

Accordingly, we conclude that the court‟s order directing the payment of

sanctions in connection with the three underlying motions to compel is not directly

appealable because the amount of sanctions awarded per motion did not reach the

$5,000 threshold provided for by section 904.1 of the Code of Civil Procedure.

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DISPOSITION

The appeal is dismissed. Town Square shall recover its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, J.

WE CONCUR:

KLEIN, P. J.

KITCHING, J.

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