2016-00201431-CU-BC

Robert Hendricks vs. California State Employees Association

Nature of Proceeding: Motion for Terminating Sanctions

Filed By: Whelan, Walter W.

Plaintiff Robert Hendrick’s Motion for Terminating Sanctions, or alternatively issues sanctions, is denied, without prejudice to seeking relief before the trial judge.

The Court has not considered evidence first submitted with the Reply.

Plaintiff Robert Hendricks (“Plaintiff”) hereby moves this Court for

terminating sanctions against Defendants, for having allegedly willfully violated this Court’s order compelling Tim Behrens to respond to deposition questions, or in the alternative for issue sanctions (see Exhibit 1 to the Declaration of Brian Whelan) The authority set forth in the notice of motion is the Court’s inherent power to exclude evidence to ensure a fair and orderly trial (Peat Marwick Mitchell v. Superior Court (1988) 200 Cal.App.3d 272, 287-289).

The Court is well familiar with this action. This case was set for trial on March 26, 2018. Plaintiff brought a motion for terminating sanctions to the trial Court’s attention prior to March 26, 2018. Defendants filed an opposition. However, because of the Court’s calendar, which gave rise to a trial continuance, the trial Court did not address, discuss, or rule on this motion. The trial date is now set for July 23, 2018.

This action pertains to Plaintiff’s loss of employment with Defendant California State Employees’ Association and California State Retirees. Plaintiff alleges during the term of Plaintiff’s employment, Defendant Paternoster served as executive director of an affiliated entity, Association of California State

Supervisors (ACSS) and that CSEA and CSR paid ACSS for Paternoster’s legal advice. Plaintiff further alleges that, at some point, Paternoster and Behrens falsely reported that he had engaged in sexual misconduct or harassment with subordinate employees. An internal investigation was completed, and

Paternoster and Behrens contend that there was evidence of Plaintiff’s wrongdoing. Paternoster and Behrens may also have told the CSR Board that Plaintiff resigned, which Plaintiff disputes, and therefore the Board never held a vote to terminated Plaintiff’s employment as would normally be required.
Paternoster then assumed Plaintiff’s job and the compensation that accompanied it.

Plaintiff has sought to investigate the substance of the investigations and communications between Behrens, Paternoster and Sandbank but defendants have declined to answer inquiries based on the attorney-client privilege.

Plaintiff contends that all defendants are subject to a terminating sanction based on an alleged violation of the court order requiring Mr. Behrens to appear at his deposition and to answer questions “as to the facts Mr. Paternoster conveyed to Mr. Behrens pertaining to the facts obtained in the investigation and the intended course of the investigation, including who was interviewed and when and why the investigation was concluded.” The Court further ruled “but any and all other subjects that may have been addressed in the conversation between Messrs Paternoster and Behrens remain privileged.” See October 18, 2017 minute order on submitted ruling taken under submission September 18, 2017, Ex E to Declaration of Whelan)

Plaintiff contends that the court order has been violated because Mr. Behrens

allegedly perjured himself at the continued deposition by now stating that Mr. Paternoster had not kept him apprised of the investigation. Plaintiff contends this statement is “perjury,” intended to circumvent the discovery order. Mr. Behrens had previously, in response to a different question, stated that Mr Paternoster had kept him abreast of the investigation as it was happening. (Depo Behrens, Vol. 1, 99:13-23.) After the discovery order, Mr. Behrens answered “No” to the question of whether Mr. Paternoster kept him apprised of what was happening in the investigation into Robert Hendricks and the allegations that had been made against him.” (Behrens Depo, Volume 3, page 226:5-11)

In opposition, defendants refer to the lengthy ruling on submitted matter referring to the parts of the ruling in which the court concluded that the dominant purpose of the relationship that Defendant Rocco Paternoster had with the corporate Defendants (CSR and CSEA) was to act as their legal counsel. (Minute Order page 4 paragraph

5) In that ruling, the Court acknowledged that Mr. Paternoster had several roles with respect to the corporate Defendants – – he was acting as their attorney (including providing advice and counsel to each), and at times as the leader of a leaderless CSR until he was actually appointed by the Board of Directors well after the Board’s closed session meeting on August 16, 2016. The Court found that there were occasions when Mr. Paternoster was acting in a mixture of the two roles of Executive Director and attorney. The Court crafted the ruling to distinguish between the occasions where the communications are privileged or not privileged. The focal point was the application of the attorney-client privilege to matters raised by a personnel investigation conducted by Laura Sandbank (not an attorney), who was reporting to Board President Tim Behrens, who was consulting with attorney Rocco Paternoster.

On this showing and at this time, the Court declines to find that Mr. Behrens willfully failed to obey the court order in the manner in which he responded to the questions. To the extent that plaintiff contends Mr. Behern’s testimony was false, that is an issue to be raised at trial, but his response to the somewhat different question than the one that was the subject of the prior motion is not a basis for imposing terminating sanctions based on willful failure to obey a court order.

Indeed, 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 tailored to the harm caused by the withheld discovery. 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. (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604-605.) Indeed, “‘The sanctions the court may impose are such as are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks but the court may not impose sanctions which are designed not to accomplish the objects of the discovery but to impose punishment. [Citations.]'” (Petersen v. City of Vallejo (1968) 259 Cal.App.2d 757, 782.)

The discovery statutes thus “evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) Although in extreme cases a court has the authority to order a terminating sanction as a first measure (see Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913, 928 -929; Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 10), 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 (see Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516; Doppes, supra, 174 Cal.App.4th at p. 992; Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1399; Lopez, supra.)

The Court also declines to impose issue sanctions in this case as plaintiff has failed to adequately show that he has been deprived of evidence that is rationally tied to the requested issue sanction. The discovery sanction cannot put the propounding party in a better position than they would have been in if they had received the discovery. Puritan Insurance Co. v Superior Court (1985) 171 Cal.App.3d 877, 884.