Filed 10/2/14 Reghabi v. Gilson CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SIX


KAYKHOSRO REGHABI,                                                            2d Civil No. B248378
                                                                            (Super. Ct. No. 1385773)
     Plaintiff and Appellant,                                                (Santa Barbara County)

v.

MICHAEL GILSON,

     Defendant and Respondent.



                   Kaykhosro Reghabi appeals from the trial court's order imposing
terminating sanctions for discovery violations. We affirm.
                                FACTS AND PROCEDURAL HISTORY
                   Appellant and three other plaintiffs filed a lawsuit against respondent
Michael Gilson.1 According to the second amended complaint, respondent leased
bedrooms within a residence he owned in Santa Barbara to 12 students, including
appellant. It was alleged that the number of tenants exceeded that allowed by law and
that respondent failed to repair various defective conditions. The complaint contained
causes of action for breach of contract, breach of the implied warranty of habitability,
breach of the covenant of quiet enjoyment, and unjust enrichment.




         1
             Of the original four plaintiffs, only Reghabi appeals.
              On June 7, 2012, respondent's counsel, Ronald Miyamoto, mailed written
discovery requests, consisting of form interrogatories, special interrogatories, and a
request for production of documents, to appellant's counsel in the trial court, Nadia
Yashar. Appellant did not respond. On July 25, 2012, Miyamoto sent letters to Yashar
requesting verified responses to the discovery in order to avoid a motion to compel.
Yashar told Miyamoto that her firm had not received the discovery requests and agreed to
accept them via email as if they had been mailed the same day. Miyamoto emailed the
requests to Yashar on July 30, 2012. Appellant again did not respond.
              On September 12, 2012, Miyamoto sent another letter to Yashar, this time
asking for the discovery responses by September 21, 2012. Appellant's counsel on
appeal, Ross Reghabi, informed Miyamoto that he was preparing for a trial but would
provide the requested responses by September 27, 2012. He did not.
              Respondent moved to compel the responses. On November 7, 2012, the
day before the hearing on the motion to compel, Reghabi called Miyamoto.2 He said that
the discovery responses were ready to be served and promised to mail them the next day.
He also inquired about a potential settlement.
              The next day, the trial court granted the motions to compel and ordered
appellant to provide the discovery, without objection, by November 30, 2012. In
addition, the court imposed a $250 sanction on appellant and each of the other plaintiffs.
The responses were not provided prior to the court-ordered deadline.
              In a December 3, 2012, email, Miyamoto asked Reghabi whether he had
secured authorization from his clients to attempt a settlement. Reghabi responded that he
was having "some difficulty" getting answers from two of his clients but was "working
on it and hopefully [would] get answers by [the] end of this week." After receiving no
further communication from appellant's counsel, Miyamoto moved for terminating
sanctions on December 17, 2012. In a declaration attached to appellant's opposition to
the motion, Reghabi asserted that he had not provided the discovery responses by the

       2
        All references to Reghabi are to appellant's counsel Ross Reghabi rather than to
appellant.
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court-ordered deadline because he assumed "that it would be in the best interest of [the
parties] to concentrate on settlement rather than spending additional time on discoverys
[sic]."
              Appellant's counsel did not appear at the January 31, 2013, hearing on the
motion for terminating sanctions. The trial court granted the motion, dismissed the
second amended complaint, and imposed monetary sanctions of $1,560. On February 21,
2013, the court entered judgment in favor of respondent.
              On the same day, appellant moved for reconsideration based on an
allegedly new fact. He claimed to have served the discovery responses on respondent on
the day before the terminating sanctions hearing. Respondent disputed that claim,
asserting that he did not receive the discovery responses until three weeks after the
hearing when appellant attached them to the motion for reconsideration. On March 28,
2013, the court denied the motion for reconsideration but reduced the monetary sanctions
to $500. This appeal followed.
                                        DISCUSSION
              We review orders imposing discovery sanctions for an abuse of discretion,
resolving any evidentiary conflicts in favor of the trial court's ruling, and reversing only if
the court's decision was arbitrary, capricious, or whimsical. (Ellis v. Toshiba America
Information Systems, Inc. (2013) 218 Cal.App.4th 853, 878.) "Generally, '[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.'" (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377,
390.)
              Code of Civil Procedure section 2023.010 lists examples of ways to misuse
the discovery process, including by "[f]ailing to respond or to submit to an authorized
method of discovery" and "[d]isobeying a court order to provide discovery." (Id. at
subds. (d), (g).) If a party fails to serve a timely response to a request for interrogatories,
on motion the court may issue an order compelling a response. (Code Civ. Proc.,

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§ 2030.290, subd. (b).) In addition, "[t]he court shall impose a monetary sanction"
against a party who unsuccessfully opposes the motion to compel, "unless it finds that the
one subject to the sanction acted with substantial justification or that other circumstances
make the imposition of the sanction unjust." (Id. at subd. (c).) "If a party then fails to
obey an order compelling answers, the court may make those orders that are just,
including the imposition of . . . a terminating sanction." (Ibid.) "In lieu of or in addition
to that sanction, the court may impose a monetary sanction . . . ." (Ibid.)
              Appellant contends that his failure to comply with the court order to turn
over the discovery responses by November 30, 2012, was not willful because he
"assumed it would be in the parties' best interest to focus on settling the case."3 Whether
appellant had justification for ignoring the court's discovery order, however, is irrelevant
to the issue of willfulness. "A willful failure does not necessarily include a wrongful
intention to disobey discovery rules. A conscious or intentional failure to act, as
distinguished from accidental or involuntary noncompliance, is sufficient to invoke a
penalty." (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 787-788.) Because appellant
"understood his obligation, had the ability to comply, and failed to comply," his failure to
comply with the court's discovery order was willful. (Id. at p. 787.)
              The mere prospect of a settlement did not justify appellant's failure to
comply. The settlement discussions were preliminary and appellant had no reason to
assume that future discussions would have proven fruitful. Even if the parties had
reached an accord that resolved the case, appellant was still obligated to seek relief from
the court's order before disregarding it. (Cf. Cooper v. American Sav. & Loan Assn.



       3 Confusingly, appellant also argues that it was error for the trial court to find his
conduct willful because the discovery statute does not require a "misuse of the discovery
process [to] be willful" to justify sanctions. (Kohan v. Cohan (1991) 229 Cal.App.3d
967, 971.) Kohan involved monetary sanctions. Even if appellant is correct that
terminating sanctions do not require a willfulness finding, it does not aid his cause. (But
see Security Pacific Nat. Bank v. Bradley (1992) 4 Cal.App.4th 89, 98 & fn. 5 [observing
that "[t]erminating sanctions have been held to be an abuse of discretion unless the party's
violation of the procedural rule was willful" and distinguishing Kohan].)
                                              4
(1976) 55 Cal.App.3d 274, 287 ["It is no excuse that plaintiffs were lulled into inactivity
because settlement negotiations were pending. [A]ttorneys know discovery matters must
proceed expeditiously inasmuch as settlement talks can often fail"]; Turley v. Turley
(1967) 254 Cal.App.2d 169, 173 ["[T]he negotiation of a possible settlement does not
excuse the failure to proceed with due diligence in the filing of pleadings, absent some
understanding that pleadings need not be filed while negotiations are in process"].)
              Appellant also argues that the trial court erred when it refused to reinstate
the second amended complaint after he presented evidence that he had served the
discovery responses on the day before the terminating sanctions hearing. This issue is
not properly before us since appellant fails to include in the record a copy of the order
denying his motion for reconsideration. We cannot know, for instance, whether the trial
court accepted appellant's assertion that he served the discovery responses by mail on the
date that he claims. Respondent asserted that this mailing did not arrive. The court may
have disbelieved that the postal service failed appellant twice.
              Regardless, "'[b]elated compliance with discovery orders does not preclude
the imposition of sanctions. [Citations.] Last-minute tender of documents does not cure
the prejudice to opponents nor does it restore to other litigants on a crowded docket the
opportunity to use the courts. [Citation.]' [Citations.]" (Sauer v. Superior Court (1987)
195 Cal.App.3d 213, 230.)
              Respondent was entitled to the discovery responses so that he could prepare
a defense against appellant's lawsuit. For six months appellant failed to provide the
responses despite respondent's repeated requests and a court order compelling their
production. The trial court was well within its discretion in imposing terminating




                                             5
sanctions for this conduct.
                                    DISPOSITION
              The judgment is affirmed. Costs to respondent.
              NOT TO BE PUBLISHED.




                                        PERREN, J.




We concur:




              GILBERT, P. J.




              YEGAN, J.




                                           6
                           Denise M. de Bellefeuille, Judge
                       Superior Court County of Santa Barbara




             Southern California Law Group and Khosro Reghabi, for Plaintiff and
Appellant.
             Miyamoto Law and Ronald K. Miyamoto, for Defendant and Respondent.




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