Zavadilova vs. Abustan

In addition, “[t]he court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.” (Code Civ. Proc., § 2023.030, subd. (c); see also Lee v. Lee (2009) 175 Cal.App.4th 1553, 1559.)

Terminating sanctions are the most severe form of sanctions and are imposed by: (1) striking out the pleadings, or parts of the pleadings, of any party engaging in the misuse of the discovery process, (2) staying further proceedings by that party until an order for discovery is obeyed, (3) dismissing the action, or any part of the action, or (4) rendering judgment by default against that party. (Code Civ. Proc., § 2023.030, subd. (d).)

“The trial court may order a terminating sanction for discovery abuse ‘after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.’” (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390, quoting Lang v. Hochman (2000) 77 Cal.App.4th 1225,1246.)

In order to impose issue, evidence, or terminating sanctions, the party subject to more serious sanctions must have failed to comply with previously issued court orders and the failure must be willful. (See Lee v. Lee (2009) 175 Cal.App.4th 1553, 1559 [“[A]bsent unusual circumstances, such

as repeated and egregious discovery abuses, two facts are generally prerequisite to the imposition of a nonmonetary sanction. There must be a failure to comply with a court order and the failure must be willful.”].)

However, “[s]ome courts have held that the more serious sanctions may be imposed . . . even where no specific order has been violated, but those cases have involved repeated and willful refusals to permit discovery or produce documents over a lengthy period of time which resulted in evidence becoming unavailable.” (Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 1399.)

As the Court of Appeal has explained:

[T]he courts have long recognized that the terminating sanction is a drastic penalty and should be used sparingly. A trial court must be cautious when imposing a terminating sanction because the sanction eliminates a party’s fundamental right to a trial, thus implicating due process rights. The trial court should select a sanction that is “tailor[ed] . . . to the harm caused by the withheld discovery.”

(Lopez v. Watchtower Bible and Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604, citations omitted, quoting Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.)

“The discovery statutes thus ‘evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. 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 v. Watchtower Bible and Tract Society of New York, Inc., supra, 246 Cal.App.4th at pp. 604-605, quoting Doppes v. Bentley Motors, Inc., supra, 174 Cal.App.4th at p. 992, italics original; see also Los Defensores, Inc. v. Gomez, supra, 223 Cal.App.4th at p. 390 [“[A] decision to order terminating sanctions should not be made lightly.”].)

“The purpose of discovery sanctions ‘is not to provide a weapon for punishment, forfeiture and the avoidance of a trial on the merits’ but to prevent abuse of the discovery process and correct the problem presented.” (Parker v. Wolters Kluwer U.S., Inc. (2007) 149 Cal.App.4th 285, 301, citations omitted, quoting Caryl Richards Inc. v. Superior Court (1961) 188 Cal.App.2d 300, 303; see In re Marriage of Chakko (2004) 115 Cal.App.4th 104, 109 [“In exercising its broad discretion to sanction discovery abuses, the trial court may impose any sanction authorized by statute that will enable the party seeking discovery to obtain the objects of the discovery sought.”].)

Thus, “[a] discovery sanction may not place the party seeking discovery in a better position than it would have been in if the desired discovery had been provided and had been favorable.” (Rail Services of America v. State Compensation Ins. Fund (2003) 110 Cal.App.4th 323, 332.)

In addition, “[d]iscovery sanctions ‘should be appropriate to the dereliction, and should not exceed that which is required to protect the interest of the party entitled to but denied discovery.’” (Doppes v. Bentley Motors, Inc., supra, 174 Cal.App.4th at p. 992, quoting Laguna Autobody v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 487.)

For example, terminating sanctions are warranted where a party repeatedly failed to respond to discovery responses for nearly one year, and disregarded two court orders, including one order warning that terminating sanctions would be the next step. (Jerry’s Shell v. Equilon Enterprises, LLC (2005) 134 Cal.App.4th 1058, 1069.)

The moving party has the burden to show the other party’s failure to comply with the discovery statutes or the court’s orders. (See Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 37 [“As the moving parties, defendants were only required to demonstrate plaintiffs’ willful failure to comply with discovery.”], superseded by statute on other grounds, Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 583.)

Thereafter, the burden of proof shifts to the party seeking to avoid sanctions to establish their lack of willfulness. (See Corns v. Miller (1986) 181

Cal.App.3d 195, 201 [“In the context of sanctions against a party for willful refusal to furnish discovery, it has been held that the responding party has the burden of proving the lack of willfulness of his failure to perform.”].)

Standard for Monetary Discovery Sanctions

On the other hand, willfulness is not required for the imposition of monetary sanctions. (Ellis v. Toshiba America Information Systems, Inc. (2013) 218 Cal.App.4th 853, 878; Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1286.) A trial court has “every right to impose a monetary sanction to compel obedience to its lawful orders, or to punish disobedience and disrespect of the court’s processes.” (20th Century Ins. Co. v. Choong (2000) 79 Cal.App.4th 1274, 1278.)

Defendant Javinson & Company

On June 6, 2026, the court dismissed Defendant Javinson & Company from this action because it did not appear to be a separate entity but rather, a fictitious business name for Defendant Abustan. (See ROA #328; see also Def. Abustan’s Opp’n to Pltf.’s Mot. for Monetary Sanctions in the Amount of $5,356.50 and for Evidence, Issue, and Terminating Sanctions at p. 1:23-25 [“Defendant Jason Abustan, appearing in propria persona solely in his individual capacity and dba Javinson and Company, opposes Plaintiff's motion for monetary, issue, evidence, and terminating sanctions.”], italics added.)

Therefore, this motion is moot to the extent it seeks relief from Defendant Javinson & Company.

Defendant Jason Abustan

On October 21, 2025, the court ordered Defendant Abustan “to serve full, complete, and verified responses and responsive documents” to Form Interrogatories – General, Set No. One (1) and Requests for Production, Set One, “without objections and within 30 days of service of the notice of ruling.” (ROA #273 at p. 2.)

Plaintiff provides evidence that, almost 9 months later, Defendant Abustan “has yet to serve verified responses to Plaintiff’s Form Interrogatories – General, Set One or Requests for Production, Set One, as required by the Court’s October 21, 2025 Order.” (Decl. of Evan M. Rothman in Supp. of

Pltf.’s Reply in Supp. of Mot. for Monetary Sanctions in the Amount of $5,356.50 Against Defendants as Well as Evidence, Issue and Terminating Sanctions (Rothman Reply Decl.), ¶ 2; see also Decl. of Evan Rothman in Supp. of Mot. for Monetary Sanctions in the Amount of $5,356.50 Against Defendants as Well as Evidence, Issue and Terminating Sanctions (Rothman Decl.), ¶¶ 8-13.)

Further, there is no dispute that Defendant Abustan was aware of the court’s October 21, 2025 order and has willfully failed to comply. (See Jason Abustan (Abustan Decl.), ¶ 15 [“I understand that the October 21, 2025 order remains an order of the Court.”]; see also id., ¶ 12 [“I am prepared to comply with a short, date-certain order addressing any formal response or specific production deficiency the Court finds remains outstanding.”]; see also id., ¶ 14 [“I am willing to serve a requestnumber index, meet and confer promptly about a specific deficiency list, produce any located responsive material within my possession, custody, or control, and submit to a narrowly limited supplemental deposition if ordered.”].)

Instead, Defendant Abustan contends that Plaintiff has taken his deposition and that he provided hard copies of documents at his deposition and access to an electronic database of documents after his deposition. (See id., ¶¶ 8, 9-11.)

However, as Plaintiff’s Counsel points out, Plaintiff refused to allow Plaintiff to review and copy all of the documents produced at his deposition, and in any case, the documents provided during and after the deposition were not a complete document production. (See Rothman Reply Decl., ¶¶ 7-12.)

In fact, Defendant Abustan does not appear to dispute that the documents are not fully compliant with the court’s October 12, 2025 order. (See Decl. of Jason Abustan, ¶ 12 [“I do not contend that my deposition testimony or document production automatically substitutes for complete verified, request-by-request responses.”].)

Defendant Abustan also points to the illness and death of his counsel and states that after his counsel’s death, he “did not have a complete understanding of his discovery strategy, the status of formal responses, his communications with prior opposing counsel, or the

organization of his file.” (See Abustan Decl., ¶¶ 2- 4.)

However, Defendant Abustan admitted that he had started looking for new counsel in August 2025, before the court issued its October 21, 2025 order. (See id., ¶ 2.)

Further, Defendant Abustan’s counsel passed away in November 2025, a month after the court’s October 21, 2025 order. (See id., ¶ 3.)

Thus, the illness and death of Defendant Abustan’s Counsel cannot explain his refusal to obey the court’s order for another 7 months, through to the current date.

Accordingly, Plaintiff has established that she should be awarded some form of sanctions in this case.

The most appropriate sanctions in this case are evidentiary sanctions.

As Plaintiff’s Counsel points out, Defendant Abustan’s “July 21, 2026 [electronic database] document production occurred three days before the July 24, 2026 discovery cutoff and after the first deposition [sic] session, leaving insufficient time under the existing schedule to investigate the newly produced materials, pursue related third-party discovery or complete Mr. Abustan’s deposition before the discovery cutoff.” (Rothman Reply Decl., ¶ 13.)

Thus, Plaintiff has been prejudiced in her ability to prepare for trial.

However, Plaintiff submits no evidence showing that she is unable to establish any element of a cause of action due to Defendant’s failure to provide verified responses to the discovery requests or all responsive documents.

This is especially true given that several dispositive facts have already been deemed admitted by Defendant Abustan pursuant to the court’s October 21, 2025 minute order. (See #273 at p. 2; see also ROA #115, #127 [Motion for Admissions to Be Deemed and for Monetary Sanctions Against Defendants Jason Abustan, Ditchpay, Inc. and Javinson and Company and Richard N. Grey].)

Thus, issue or terminating sanctions would not be commensurate to the dereliction by Defendant Abustan nor would the be consistent with the incremental approach that the court must apply.

Finally, monetary sanctions are appropriate here as it was necessary to bring the instant motion to require Defendant Abustan to comply to the extent he has.

However, the court will deduct 5.5 hours spent opposing a different motion brought by Defendant Abustan and include an additional 2.0 hours to prepare the reply in light of Defendant Abustan’s filing of numerous supplemental documents in opposition to this motion.

Therefore, the court will grant the motion for evidence and monetary sanctions, and deny the motion for issue and terminating sanctions.

Plaintiff shall give notice of this ruling.

Motion for Joinder of Party and for Leave to File Cross-Complaint

Motion for Joinder of Necessary Party, or in the Alternative for Leave to File Cross-Complaint Against Matthew Laspia is DENIED.

Plaintiff’s Evidentiary Objections to the Declaration of Jason Abustan in Support of Defendant’s Motion for Joinder of Necessary Party, or in the Alternative for Leave to File Cross-Complaint, or for Related Scheduling Relief are OVERRULED as to evidentiary objection numbers 1-2 and 5-14, and SUSTAINED as to evidentiary objection numbers 3-4.

Pending Motion

Defendant Jason Abustan moves for an order joining Matthew Laspia to this action as a necessary party, or in the alternative, for an order granting leave to file a cross-complaint against Matthew Laspia.

Withdrawal of Motion for Joinder

In his reply, Defendant Jason Abustan (Defendant Abustan) “expressly withdraws the compulsory-joinder branch of the present motion” and “requests one order only: discretionary leave under sections 428.10, subdivision (b),

428.20, and 428.50, subdivision (c), to file the Proposed Revised Cross-Complaint naming Matthew Laspia solely as a cross-defendant.” (Def. Abustan’s Reply in Supp. of Alternative Request for Leave to File Revised Cross-Complaint and in Further Supp. of Mot. at p. 2:5-9.)

Thus, the court will address only the issue of leave to file a cross-complaint.

Standard for Leave to File Cross-Complaint

Civil Procedure Code section 428.10 provides that:

A party against whom a cause of action has been asserted in a complaint or cross- complaint may file a cross-complaint setting forth either or both of the following:

(a) Any cause of action he has against any of the parties who filed the complaint or cross-complaint against him. . . .

(b) Any cause of action he has against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserted in his cross-complaint (1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause brought against him.

(Code Civ. Proc., § 428.10.)

If the party wishes to file a cross-complaint against a plaintiff or cross-complainant who filed a complaint or cross-complaint against the party, they must do so before or at the same time as the they file the answer to the complaint or cross-complaint. (See Code Civ. Proc., § 428.50, subd. (a).)

If the party wishes to file a cross-complaint against a party that has not filed a complaint or crosscomplaint against them, they may do so any time before the court has set a date for trial. (See Code Civ. Proc., § 428.50, subd. (b).)

If the party misses these deadlines, the party “shall obtain leave of court to file any cross-complaint.” (Code Civ. Proc., § 428.50, subd. (c); see also Code

Civ. Proc., § 426.50 [“A party who fails to plead a cause of action subject to the requirements of this article, whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave . . . to file a cross-complaint, to assert such cause at any time during the course of the action.”].)

If the proposed cross-complaint is compulsory, leave must be granted so long as defendant is acting in good faith. (See Code Civ. Proc., § 426.50 [“The court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave . . . to file the cross-complaint, to assert such cause if the party who failed to plead the cause acted in good faith.”]; Silver Organizations, Ltd. v. Frank (1990) 217 Cal.App.3d 94, 98-99 [“Factors such as oversight, inadvertence, neglect, mistake or other cause, are insufficient grounds to deny the motion unless accompanied by bad faith.”].)

A compulsory cross-complaint is a cross-complaint that is asserted against the plaintiff and contains a cause of action that is related to the complaint. (See Code Civ. Proc., § 426.30, subd. (a).)

A cause of action is “related” to the complaint if it “arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint.” (Code Civ. Proc., § 426.10, subd (c).)

In order to be related, there does not need to be “’an absolute identity of factual backgrounds for the two claims, but only a logical relationship between them.’ At the heart of this approach is the question of duplication of time and effort; i.e., are any factual or legal issues relevant to both claims?” (Currie Medical Specialties, Inc. v. Bowen (1982) 136 Cal.App.3d 774, 777, citations omitted, quoting United Artists Corp. v. Masterpiece Prods. (2d Cir. 1955) 221 F.2d 213, 216.)

Claims that are only loosely related in that they involve some of the same parties and the same matter, directly or indirectly, are not logically related if the trial of the claims does not involve a duplication of time and effort due to the fact that there are factual and legal issues that are relevant to both claims. (See ZF Micro Devices, Inc. v. TAT Capital Partners, Ltd. (2016) 5 Cal.App.5th 69, 84.)

All cross-complaints that are not compulsory are permissive cross-complaints.

Leave to file a permissive cross-complaint is within the discretion of the court, which may be granted “in the interests of justice.” (Code Civ. Proc., § 428.50, subd. (c).)

Here, Defendant Abustan seeks to file a cross- complaint against a third-party and not the Plaintiff. Therefore, the cross-complaint is permissive rather than compulsory/

Here, Defendant Abustan seeks to add a third-party to this action only a month before trial. If the court were to grant the motion, this would delay the trial as the cross-defendant would need time to prepare for trial.

Further, the allegations in the proposed cross- complaint show that Defendant Abustan was aware of the identity and involvement of Mathew Laspia at the time the events alleged in the Complaint occurred. (See Decl. of Jason Abustan in Supp. of Mot. for Joinder or, in the Alternative, Leave to File Cross-Compl., ¶¶ 12-20.)

At a minimum, Defendant Abustan was aware of the conduct of Matthew Laspia of which he now complains, no later than June 18, 2025, when he filed Defendant’s Answer to Plaintiff’s First Amended Complaint. (See Def.’s Answer to Pltf.’s First Amend. Compl. at pp. 5-6.)

Defendant Abustan provides no explanation for his delay in seeking leave to file the cross-complaint against Matthew Laspia.

Finally, Defendant Abustan fails to show that he will not be able to bring his claims against Matthew Laspia in a separate action or that he will be prejudiced in some other way if the court denies his motion.

Therefore, the court will deny the motion for leave to file cross-complaint.

Plaintiff shall give notice of this ruling.

2 Sunstate Equipment Co., LLC Motion to Set Aside Default vs. Treni Cole Builders, Inc.