Filed 10/14/20 Khodayari v. Escandari CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

BAHMAN KHODAYARI,

Plaintiff and Appellant,

v.

ALEXANDER H. ESCANDARI

et al.,

Defendants and 

Respondents.

 B299524

 (Los Angeles County

 Super. Ct. No. BC440188)

APPEAL from an order of the Superior Court of 

Los Angeles County, Dennis J. Landin, Judge. Affirmed.

Bahman Khodayari, in pro. per., for Plaintiff and 

Appellant. 

No appearance for Defendants and Respondents. 

__________________
2

Bahman Khodayari appeals the trial court’s May 14, 2019 

order granting the motion for terminating sanctions filed by 

Alexander H. Escandari and his two related law firms, Escandari 

Law Firm, Inc. and Escandari & Michon (collectively Escandari), 

and dismissing with prejudice Khodayari’s lawsuit for legal 

malpractice. Khodayari contends the court improperly set the 

hearing on the motion on shortened time and abused its 

discretion by not considering imposition of a lesser sanction for 

his violation of the court’s discovery orders. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Khodayari’s Complaint for Legal Malpractice

Khodayari, representing himself, sued Escandari for legal 

malpractice on June 22, 2010 alleging Escandari had 

misrepresented his expertise in criminal and real estate law 

when he agreed to represent Khodayari, failed to properly 

research issues arising from his representation, submitted 

excessive bills and ultimately abandoned Khodayari by

withdrawing from a criminal case at a critical time with a false 

excuse.1 On November 12, 2010 Khodayari filed an unverified 

first amended complaint, asserting 16 causes of action, including 

breach of contract, fraud and professional negligence. The 

amended complaint added factual allegations describing the 

various legal proceedings in which Khodayari was involved 

starting in early 2007 and detailing the interactions between 

Khodayari and Escandari from their first meeting on March 3, 

1 As does Khodayari in his appellant’s brief, we borrow 

heavily from our opinion in Khodayari v. Escandari (Apr. 25, 

2017, B263187) [nonpub. opn.]) in describing the events occurring 

through our initial decision in the case.
3

2008 and Khodayari’s retention of Escandari on March 12, 2008, 

through Escandari’s withdrawal from the representation on 

April 30, 2008.

After an unsuccessful demurrer in March 2011, Escandari 

answered the amended complaint and filed a cross-complaint for 

slander and intentional infliction of emotional distress.

2. The Initial Discovery Disputes

In early May 2011 Khodayari served form interrogatories, 

special interrogatories and requests for the production of 

documents on Escandari. Deeming Escandari’s responses 

inadequate, Khodayari then filed nine motions to compel further 

responses to the written discovery he had served. The court 

ordered the appointment of a discovery referee to rule on the 

motions. 

Prior to a scheduled status conference on November 23, 

2011, Khodayari moved to compel the deposition of Escandari; 

and Escandari moved to compel the deposition of Khodayari. 

Each side also moved for protective orders with respect to his own 

deposition. The court granted both motions to compel, setting 

dates for the commencement of each deposition and denied the 

motions for protective orders. The court also denied all requests 

for sanctions.

On February 21, 2012, contending that Escandari had 

raised frivolous issues and objections at the court-ordered 

deposition, Khodayari moved to compel a further deposition and 

additional responses to his demand to produce documents at the 

deposition. On April 5, 2012 the court ordered Khodayari’s 

motion off calendar without prejudice to renewing it before the 
4

appointed discovery referee. In addition, the court authorized the 

referee to preside at the deposition and rule on objections.2

In August 2012 Escandari moved to compel further 

responses to his request for admissions and to his first set of 

special interrogatories and request for documents. Both motions 

included requests for an award of monetary sanctions pursuant 

to Code of Civil Procedure section 2023.0103 for misuse of the 

discovery process. Khodayari filed a combined opposition, 

arguing, in part, Escandari had engaged in legal gamesmanship 

to avoid responding to his discovery, including frustrating efforts 

to have a discovery referee appointed and then failing to 

cooperate in scheduling hearings on Khodayari’s motions to 

compel. Khodayari also asserted Escandari had failed to meet 

and confer in a reasonable manner with respect to the discovery 

at issue in the motions. On October 11, 2012 the court granted 

both motions to compel and awarded monetary sanctions 

of $4,000. 

In an ex parte application for an order regarding his own 

discovery motions filed November 1, 2012, Khodayari repeated 

his charge that Escandari had frustrated Khodayari’s ability to 

2 While these discovery disputes were ongoing, Escandari 

moved for judgment on the pleadings. On May 15, 2012 the court 

granted the motion and gave Khodayari leave to amend. On 

June 4, 2012 Khodayari filed a second amended complaint for 

damages. On August 20, 2012 the court sustained Escandari’s 

renewed demurrer without leave to amend as to the causes of 

action for intentional infliction of emotional distress and abuse of 

process and overruled it in all other respects. The court gave 

Escandari 30 days to answer and, among other orders, set a 

May 14, 2013 trial date for a seven-day jury trial.

3 Statutory references are to this code.
5

obtain discovery and prepare for trial by providing incomplete 

responses and refusing to cooperate and appear before the 

discovery referee. Because the court had decided Escandari’s 

motions, but referred Khodayari’s motions to the referee, 

discovery was one-sided and unfair, he complained. The court 

denied the application. The following week the court denied 

Khodayari’s application to extend the time for him to comply with 

the court’s order to respond to the discovery propounded by 

Escandari.

3. The Original Order Granting a Terminating Sanction

On December 5, 2012 Escandari moved for terminating 

sanctions (dismissal of the complaint with prejudice) and 

imposition of further monetary sanctions of $3,560 because 

Khodayari had not provided the discovery responses or paid the 

monetary sanctions as ordered by the court on October 11, 2012. 

Khodayari’s opposition papers largely repeated his arguments 

proffered in response to the motions to compel and his ex parte 

application regarding the one-sided nature of discovery to date. 

In addition, Khodayari argued terminating sanctions were 

inappropriate, insisting Escandari had made no showing that less 

severe sanctions were not sufficient to cure whatever harm had 

been caused by his failure to provide responses. 

The court (Judge Abraham Khan) granted Escandari’s 

motion for terminating sanctions on January 17, 2013, finding 

Escandari had established that Khodayari violated the 

October 11, 2012 discovery order by not serving any further 

responses and Khodayari’s declaration in opposition failed to 

show the failure to respond was not willful. The court then 

stated, “Where a party willfully disobeys a discovery order, courts 

have discretion to impose terminating, issue, evidence or 
6

monetary sanctions.” The court did not explain why it selected 

terminating, rather than less severe, sanctions. The request for 

additional monetary sanctions was denied.

4. The Appeal in Khodayari v. Escandari, B263187

After the court dismissed Khodayari’s complaint with 

prejudice and dismissed Escandari’s cross-complaint for failure to 

prosecute, Khodayari appealed, arguing the trial court should 

have referred Escandari’s motions to compel to the discovery 

referee or, in the alternative, should not have decided those 

motions without withdrawing the reference and also deciding the 

motions he had previously filed; the award of monetary sanctions 

in the October 11, 2012 order was improper because Escandari 

and the two related law firms were representing themselves in 

the action; and imposition of a terminating sanction was not 

justified under the circumstances of the case.

We reversed the judgment, holding, although the trial court 

had the authority to impose sanctions for Khodayari’s 

disobedience of its October 11, 2012 discovery order, it was an 

abuse of discretion to dismiss his lawsuit as the first sanction 

imposed for that violation. We noted the court had imposed the 

sanction only three months after the order had been made (and 

after denying Khodayari’s ex parte request for additional time to 

comply) and Khodayari had not violated any other discovery 

order. Moreover, there was no basis in the record to conclude 

that the court could not have obtained Khodayari’s compliance 

with lesser sanctions or that the misconduct was so extreme as to 

justify dismissal of the action as a first measure. (Khodayari v. 

Escandari (Apr. 25, 2017, B263187) [nonpub. opn.].) We also 
7

held the trial court had improperly awarded monetary sanctions 

to Escandari, a self-represented litigant.4

5. The Discovery Disputes Continue on Remand

Discovery and discovery disputes continued following our 

remand. At a case management conference on June 25, 2018 the 

parties advised the court a number of motions to compel 

additional discovery were pending. The court set an August 2, 

2018 hearing date for all outstanding discovery motions. The 

court also scheduled the jury trial for April 9, 2019. 

At the August 2, 2018 hearing the court (Judge Michael 

Raphael) granted Escandari’s motions to compel Khodayari’s 

deposition and further responses to written discovery (form 

interrogatories, special interrogatories, request for admissions 

and request for production). The responses to written discovery 

were to be provided, without objection, within 10 days

(subsequently extended to 30 days); and the deposition was to 

take place within 30 days. The court also granted Khodayari’s 

motion to compel further written discovery. The court denied all 

other discovery motions and declined to award sanctions to either 

party. 

On February 5, 2019 Escandari moved for terminating and 

monetary sanctions, asserting Khodayari had not provided any 

further responses to written discovery as ordered on August 2, 

2018. Although the motion was based on Khodayari’s failure to 

answer written discovery, in her declaration in support of the 

motion, Escandari’s counsel also stated Khodayari had not yet 

4 We rejected Khodayari’s third argument that the trial court 

had abused its discretion in deciding some discovery motions 

while appointing a discovery referee to resolve others.
8

been deposed and had not contacted her office to schedule the 

deposition. On March 12, 2019 the court (Judge Dennis Landin) 

granted Escandari’s ex parte application and advanced the 

hearing date on his motion for terminating sanctions from May 9, 

2019 to April 9, 2019 and vacated the April 9, 2019 trial date. 

Khodayari, now apparently represented by counsel, filed 

opposition papers on March 28, 2019, which explained, contrary 

to the statement in the moving papers, he had been deposed for a 

portion of a day on August 10, 2018, eight days after the court 

order. Khodayari also noted the court’s August 2, 2018 order 

gave him 30 days to provide further responses, not 10 days as 

stated in the moving papers, although he did not dispute that he 

had yet to provide any responses at all. With his papers, 

however, Khodayari provided supplemental responses to 

Escandari’s request for admissions; stated he was in the process 

of preparing the remainder of his supplemental responses; and, 

referring to the analysis in our decision reversing the prior order 

granting terminating sanctions, argued less extreme sanctions 

were available to ensure compliance with the court’s discovery 

orders. Khodayari also asserted Escandari, for his part, had 

failed to provide any further discovery as ordered by the court on 

August 2, 2018. 

After a hearing on April 9, 2019 at which Khodayari argued 

in opposition to the motion in pro per,5 the court took the matter 

under submission. On April 11, 2019 the court denied the motion 

for terminating sanctions without prejudice, ordered Khodayari 

5 The court, after explaining that a lawyer who appeared at 

the hearing with Khodayari had not substituted into the case as 

counsel, even on a limited basis, deemed Khodayari to continue to 

be self-represented.
9

to serve verified responses to the outstanding discovery requests 

within five days and awarded Escandari $2,310 in monetary 

sanctions, to be paid within 30 days. In a written ruling 

accompanying its minute order, the court explained that 

Escandari had not demonstrated how sanctions short of 

terminating the lawsuit would be ineffective. However, to ensure 

Khodayari’s full compliance with the order to provide further 

written responses within five days, the court ruled, “In the event 

[Khodayari] does not do so or his responses are evasive or 

incomplete, the court will reconsider this motion.” 

At the trial setting conference on April 24, 2019 Escandari 

advised the court he intended to bring another motion for 

terminating sanctions and requested the court specially set the 

motion. Khodayari did not object. The court set the motion for 

hearing on May 10, 2019 and ordered Escandari to file his motion 

within 48 hours.6

Escandari filed his renewed motion for terminating 

sanctions shortly after 7:00 p.m. on April 24, 2019. Escandari 

stated Khodayari had served one set of further responses to 

Escandari’s special interrogatories (attached as an exhibit) that 

were not “code compliant” and no further responses to the 

outstanding form interrogatories, request for admissions and 

6 At the April 24, 2019 hearing the court also denied 

Khodayari’s motion to compel discovery and for sanctions based 

on Escandari’s failure to provide discovery responses and 

Escandari’s contempt of court for filing a motion for terminating 

sanctions with unclean hands. Because Khodayari complained 

he had not received documents Escandari insisted had been sent 

to him, the court had Khodayari state his mailing address on the 

record and ordered Escandari to re-mail copies of previously 

produced documents. 
10

request for production and had not contacted Escandari’s counsel 

regarding them. Khodayari did not file any opposition to the 

renewed motion. 

The court heard argument on Escandari’s motion on 

May 10, 2019. Khodayari contended he had not been served with 

the motion. Based on material presented at the hearing by 

Escandari, who said he had anticipated Khodayari would make 

that claim, the court found the motion had been properly served.7

The court then focused Khodayari on the sufficiency of his 

responses to requests for admissions 5 to 12, which concerned 

whether he signed or initialed certain documents regarding the 

attorney-client relationship between Khodayari and Escandari. 

As reflected in the minute order entered May 10, 2019, the court 

“recall[ed] the matter multiple times in order to give Plaintiff an 

opportunity to respond to various argument[s] and retrieve 

documents.” Khodayari did not request additional time to file an 

opposition, instead arguing the discovery responses provided to 

date were proper; he had, in any event, given the information 

Escandari needed when he had been deposed; and Escandari was 

guilty of misrepresenting what had occurred during discovery.

After hearing argument the court vacated its April 11, 2019 

order requiring Khodayari to pay monetary sanctions and took 

the matter under submission. 

7 Although there is no reporter’s transcript or settled 

statement for the May 10, 2019 hearing, the court in its May 14, 

2019 ruling described what had occurred at some length. 
11

6. The Court’s Order Terminating the Lawsuit

On May 14, 2019 the court granted Escandari’s motion for 

terminating sanctions and dismissed Khodayari’s second

amended complaint with prejudice. In its written ruling the 

court stated it had concluded, after reviewing the discovery 

responses provided, as well as the pages of the deposition 

transcript Khodayari had identified at the May 10, 2019 hearing 

as providing the necessary information to Escandari (thereby 

potentially mitigating any prejudice), that “Plaintiff’s deposition 

answers are ambiguous and his responses to the requests for 

admission numbers 5-12 are not code compliant as are many of 

his responses to the requests for production and interrogatories. 

This is consistent with his pattern of avoiding his discovery 

obligations.”

The court explained the significance of Khodayari’s 

discovery failures: “Plaintiff’s complaint is based on the 

argument that Defendants breached a fiduciary duty. The scope 

of that duty, in large part, depends on the terms of written 

documents, which Plaintiff may or may not have signed. The 

many motions and discovery hearings to get straightforward 

answers to clarify this point have been futile.” The court stated it 

understood that less severe sanctions generally should be tried 

but, based on the history of the case, it had determined they 

would not be effective. “The Plaintiff has appeared before this 

court may times and on each occasion has attempted to mislead 

the court regarding his efforts to comply with legitimate 

discovery requests and later orders of the court. The court does 

not believe his claims of confusion regarding certain 

interrogatories and requests for admissions and finds that he has

not made a good faith attempt to respond as required. In fact, he 
12

has acted in bad faith. His failure to comply has been willful and 

calculated to force the Defendants to file several discovery 

motions and has delayed the progress of this case.” 

The court subsequently denied Khodayari’s ex parte motion 

for reconsideration of the order granting the motion for 

terminating sanctions and his noticed motion for reconsideration. 

Khodayari filed a timely notice of appeal.8

DISCUSSION

1. Standard of Review

The trial court has “broad discretion” to impose discovery 

sanctions subject to reversal only for “arbitrary, capricious, or 

whimsical action.” (Van v. LanguageLine Solutions (2017) 

8 Cal.App.5th 73, 80; accord, Department of Forestry & Fire

Protection v. Howell (2017) 18 Cal.App.5th 154, 191.) Despite 

that general deferential standard of appellate review, however, 

we closely examine an order terminating a lawsuit as a discovery 

sanction; “the courts have long recognized that the terminating 

sanction is a drastic penalty and should be used sparingly.” 

(Lopez v. Watchtower Bible & Tract Society of New York, Inc.

8 Khodayari’s notice of appeal identifies both the court’s 

May 14, 2019 order granting the motion for terminating 

sanctions and dismissing the lawsuit and its June 24, 2019 order 

denying Khodayari’s motion for reconsideration. Similarly, in the 

second paragraph of his appellate brief Khodayari indicates he is 

appealing from the denial of his motion for reconsideration. 

However, after this initial statement Khodayari’s brief does not 

address the motion for reconsideration. Accordingly, any issue 

regarding the court’s ruling denying that motion has been 

forfeited. (See Reid v. City of San Diego (2018) 24 Cal.App.5th 

343, 369; Pfeifer v. Countrywide Home Loans, Inc. (2012) 

211 Cal.App.4th 1250, 1282.)
13

(2016) 246 Cal.App.4th 566, 604; see Department of Forestry, at 

p. 191 [“under the statutory scheme, trial courts should select 

sanctions tailored to the harm caused by the misuse of the 

discovery process and should not exceed what is required to 

protect the party harmed by the misuse of the discovery 

process”]; Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 

967, 992 [“‘[d]iscovery sanctions “should be appropriate to the 

dereliction, and should not exceed that which is required to 

protect the interests of the party entitled to but denied 

discovery”’”].)

“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.’ [Citation.] 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.’ [Citation.] Under this standard,

trial courts have properly imposed terminating sanctions when

parties have willfully disobeyed one or more discovery orders.”

(Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390.)

“When the trial court’s exercise of its discretion relies on

factual determinations, we examine the record for substantial

evidence to support them.” (Los Defensores, Inc. v. Gomez, supra,

223 Cal.App.4th at p. 390.) “The appellant bears the burden on

appeal of demonstrating that the trial court abused its discretion
14

in imposing a discovery sanction.” (Rutledge v. Hewlett-Packard

Co. (2015) 238 Cal.App.4th 1164, 1191.)

2. The Court Did Not Abuse Its Discretion in Issuing a 

Termination Sanction for Khodayari’s Repeated 

Violation of Its Discovery Orders

a. Khodayari forfeited any claim of improper notice of 

the May 10, 2019 hearing

A party is entitled, both as a matter of statute and due 

process, to proper notice before a court imposes discovery 

sanctions. (§ 2023.030; see Sole Energy Co. v. Hodges (2005) 

128 Cal.App.4th 199, 207-208.) However, as discussed, 

Khodayari did not object at the April 24, 2019 hearing when 

Escandari requested the court specially set his renewed motion 

for terminating sanctions and the court scheduled the hearing on 

the matter for May 10, 2019. Nor did Khodayari request 

additional time to file an opposition to the motion at the hearing 

on May 10, 2019, where he claimed he had never been served 

with the renewed motion—a claim the court rejected. As a result, 

he has forfeited any argument the motion was not properly 

noticed. (See Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1288

[“‘a party who appears and contests a motion in the court below 

cannot object on appeal or by seeking extraordinary relief in the 

appellate court that he had no notice of the motion or that the 

notice was insufficient or defective’”]; Pacific Std. Life Ins. Co. v.

Tower Industries, Inc. (1992) 9 Cal.App.4th 1881, 1888 [“Tower 

has waived its right to complain of insufficient notice of the 

motion for judgment [because it] did not object to the motion on 

the ground of lack of notice”]; see generally Doers v. Golden Gate

Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1 [“‘[a]n 

appellate court will ordinarily not consider procedural defects or 
15

erroneous rulings, in connection with relief sought or defenses 

asserted, where an objection could have been but was not 

presented to the lower court by some appropriate method’”].)

b. Dismissing Khodayari’s lawsuit based on his willful, 

bad faith violation of discovery orders was well 

within the trial court’s discretion 

In addition to complaining the trial court, when issuing the 

terminating sanction, ignored Escandari’s failure to fully comply 

with his discovery obligations, Khodayari contends the court’s 

order that his further discovery responses not be “evasive or 

incomplete” was unduly vague and that Escandari failed to show 

he was prejudiced by Khodayari’s discovery violations. 

Khodayari also suggests the requests for admission were 

somehow improper because they were directed to allegations in 

his first amended complaint, rather than the operative second 

amended complaint.

None of these arguments carries Khodayari’s burden of 

demonstrating the trial court abused its discretion in imposing 

the terminating sanction for Khodayari’s ongoing failure to 

comply with his discovery obligations and the court’s discovery 

orders. As the court explained, an essential issue in the case 

(whether measured by the allegations in the first or 

second amended complaint, which were fundamentally 

unchanged) was the nature and extent of the attorney-client 

relationship between Khodayari and Escandari. That issue, in 

turn, depended to a significant extent on whether Khodayari had 

signed or initialed various documents. There was nothing vague 

or ambiguous about Escandari’s legitimate discovery requests 

directed to that question or the court’s April 11, 2019 order that 
16

Khodayari state unequivocally whether he did or did not sign the 

documents. 

Khodayari does not argue on appeal that he, in fact, 

provided satisfactory discovery responses following the court’s 

April 11, 2019 order. Although he asserts the court should have 

imposed a lesser sanction for his ongoing discovery failures, he 

does not suggest how, after the court’s repeated, unsuccessful 

efforts to ensure compliance, any other sanction would have been 

effective in prompting the necessary responses or curing the 

prejudice Escandari had suffered. The court’s contrary 

conclusion, based on its assessment of the circumstances of the 

case, was well within its discretion. 

DISPOSITION

The order dismissing the case is affirmed. Because 

Escandari did not appear in the appeal, Khodayari will bear his 

own costs. 

PERLUSS, P. J.

We concur:

FEUER, J.

DILLON, J.*

* Judge of the Los Angeles County Superior Court, assigned 

by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.