Salem v. State Farm General Ins. Co.
Filed 5/12/06 Salem v. State Farm General Ins. Co. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
| RIFAAT SALEM et al., Plaintiffs and Appellants, v. STATE FARM GENERAL INSURANCE COMPANY, Defendant and Respondent. | B182315 (Los Angeles County Super. Ct. No. YC047949) |
APPEAL from a judgment of the Superior Court of Los Angeles County, Jean E. Matusinka, Judge. Affirmed.
Lawrence B. Haile for Plaintiffs and Appellants.
Michael Maguire & Associates, formerly Barry Bartholomew & Associates, Kathryn Albarian, Berger Kahn, and Teresa A. Ponder for Defendant and Respondent.
I. introduction
Plaintiffs, Rifaat and Linda Salem, have appealed from a judgment dismissing a complaint against defendant, State Farm Fire & Casualty Insurance Company, as a terminating sanction and an order denying their Code of Civil Procedure section 473[1] motion to set aside the dismissal order. As to entry of the terminating sanction, the trial court did not abuse its discretion. As to the order denying plaintiffs' motion for relief from the dismissal order, no argument has been presented. We therefore affirm the judgment and order denying the motion for relief from the dismissal.
II. background
Plaintiffs filed this action on November 7, 2003, alleging contract and tortious implied covenant claims against defendant related to water intrusion damage to their residence. Plaintiffs sought compensation for: structural repairs; mold damage remediation in the aggregate amount of $476,433.87; emotional distress damages; and punitive claims. Defendant answered the complaint on March 17, 2004.
On July 29, 2004, defendant filed the following three motions, all of which contained monetary sanctions requests: to compel Ms. Salem to serve objection free answers to interrogatories propounded on April 23, 2003; to compel the deposition of a non-party witness, Nabil D. Salem[2]; and to compel plaintiffs to serve objection free responses to a production demand propounded on June 9, 2004 and to produce documents. It is the production demand order which ultimately resulted in the dismissal order.
In August 2004, plaintiffs' counsel, Lawrence B. Haile, filed declarations in opposition to the motions to compel and for monetary sanctions. Mr. Haile declared, among other things, that Mrs. Salem had served interrogatory answers on defendant on August 3, 2004. Mr. Haile explained that: Nabil had overseen the repair and reconstruction of the home; Nabil would be produced for his deposition and would gather up and produce supporting documentation in the first week of September 2004; counsel for both sides had discussed the document production issue; plaintiff did not have documents pertaining to the reconstruction and repair of the residence; Nabil had possession of the documents but had not yet furnished them to plaintiffs; and other documents related to the purchase of the property had been destroyed by water damage.
The three motions were heard on August 26, 2004. The trial court ruled: the motion to compel interrogatory answers was moot because responses had been served; Nabil was ordered to appear and produce documents listed in the deposition subpoena on September 13, 2004; and plaintiffs were ordered to serve a written response to the production demand and the documents by September 7, 2004. The trial court denied defendant's monetary sanctions requests.
On September 30, 2004, defendant filed a motion for terminating or evidentiary sanctions. Defendant's attorney, Teresa R. Ponder, filed a declaration in which she explained no response to the production demand had been served and Mr. Haile had made what was described as a â€
