Case Number: BC649025 Hearing Date: August 08, 2018 Dept: 73

8/8/18
Dept. 73
Rafael Ongkeko, Judge presiding

ELIZABETH TAYLOR, et al. v. ALKIVIADES DAVID, et al. (BC649025)

Counsel for plaintiffs: Lisa Bloom; Alan Goldstein (The Bloom Firm)
Counsel for defendants: Ellyn Garofalo; Kathryn Riley Grasso; Amir Kaltgrad; Susan Acquista (DLA Piper)
Other counsel: Omitted.

PLAINTIFFS MOTION FOR SANCTIONS (filed 5/8/18; cont.from 6/22/18)

TENTATIVE RULING

Plaintiffs’ motion for sanctions is DENIED. Given the parties’ contentious discovery efforts to date, the court is likely to appoint a discovery referee under CCP § 639(a) in the future.

DISCUSSION (Please note: Unfortunately, the court’s tentative ruling website, which is the source of this version, is not able to show certain formatting that may be contained in the original, such as the court’s use of footnotes, boldface, italics, or the underscoring of case citations.)

Per CCP §§ 2023.010(d), (e), (g), and 2023.030, Plaintiffs move this court to strike Defendant David’s answer, enter default against him, and strike his cross-complaint. Plaintiffs argue terminating sanctions are necessary because of Defendant David’s history of discovery abuse and the court’s October 26, 2017 order. Plaintiffs argue Defendant has a history of refusal to appear at deposition. Plaintiffs assert that monetary sanctions are insufficient because David can afford them (and has already been sanctioned for unsuccessfully opposing Plaintiff Taylor’s anti-SLAPP motion). In the alternative, Plaintiffs request issue sanctions. Specifically, Plaintiffs request that the following “related alleged facts” be established:

• Defendant posted offensive material on his social media account.
• Defendant required Plaintiffs to follow him on social media.
• Defendant played an offensive video during office business hours.
• Defendant hired a stripper to perform during office business hours.
• Defendant did not attempt to investigate into fraudulent insurance practices that Plaintiffs had complained about.
• Defendant’s termination of Plaintiffs’ employment was wrongful.

In opposition, Defendant argues he did not refuse to comply with a court order to provide discover because: the court allowed Defendant thirty days from the October 26, 2018 order to produce responsive documents, if any; Defendant produced responsive documents on November 22 and 28, 2017; and Defendant was deposed for a full day on October 27, 2018. Defendant avers he never received notice for the second deposition for April 30, 2018. Defendant argues his failure to appear at the second deposition does not warrant terminating or issue sanctions because no order compelling his attendance at a second deposition has been sought or entered. In addition, Defendant argues he did not fail to comply with the court’s order compelling him to produce documents because, prior to filing the sanction motions, Plaintiffs never contended Defendant’s productions were incomplete. Defendant points out that Plaintiffs’ second deposition notice does not even include a document request.

Defendant also asserts that his failure to appear at the second deposition was not willful and does not warrant imposition of severe sanctions. Defendant claims the only reason he did not appear at the April 30, 2018 noticed deposition is because his attorney passed away suddenly the prior month and Defendant was temporarily without legal representation. Defendant avers he did not receive actual notice of the April 30, 2018 deposition. Defendant also argues that Plaintiffs failed to comply with the notice requirement under CCP section 286, which provides that a party must provide written notice to its adversary if the adversary’s attorney dies, prior to initiating any further proceedings in the matter.

In reply, Plaintiffs maintain that Defendant abused discovery by failing to appear at depositions, failing to cooperate with deposition scheduling, asserting blanket objections to written discovery, and failing to produce documents. Plaintiffs argue that Defendant provided no documents at his deposition and Defendant’s subsequent production consisted of: the employee handbook (already in Plaintiffs’ possession), a two-sentence birthday greeting, and a declaration that counsel previously produced prior to this litigation. Plaintiffs claim that Defendant has not produced any documents specifically relating to Plaintiff Taylor as ordered by this court. Plaintiffs argue that Defendant had notice of his April 30, 2018 deposition because Plaintiffs’ sent the notice to Defendant himself, as well as to Mr. Zuiderweg (who Plaintiffs contend has always appeared to be the primary handling attorney in this case). Plaintiffs argue that CCP section 286 is inapplicable because Mr. Zuiderweg was still Defendant’s counsel at the time Plaintiffs filed this motion on May 8, 2018. Further, Plaintiffs claim that Mr. Zuiderweg appeared on behalf of Defendant at Plaintiff’s May 10, 2018, ex parte application to shorten time on the instant motion.

ANALYSIS

Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidence, or monetary sanctions. (CCP §§ 2023.010 (g), 2030.290 (c); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) “[A] penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.” (Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.) The court may impose a terminating sanction by one of the following orders: (1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process. (2) An order staying further proceedings by that party until an order for discovery is obeyed. (3) An order dismissing the action, or any part of the action, of that party. (4) An order rendering a judgment by default against that party. (CCP § 2023.030(d).)

As set forth under Attorney Guidelines of Civility and Professionalism, Appendix 3.A(e)(2), “[i]n scheduling depositions, reasonable consideration should be given to accommodating schedules or opposing counsel and of the deponent, where it is possible to do so without prejudicing the client’s rights.”

Plaintiffs’ argument that there is a history of discovery abuse is unavailing. First, there is no history Defendant has repeatedly failed to appear at depositions. Although Defendant concedes he missed the April 2018 deposition, Defendant David declares that he did not receive actual notice of the deposition due to recent the passing of his then-counsel of record. Although Plaintiffs assert that Defendant did not appear at his September 2017 deposition, the correspondence produced establishes that the parties were negotiating on an alternative date because Defendant had a medical procedure planned on the date the deposition was noticed. (See Goldstein Decl., Exs. A-D.) The parties then agreed to have the deposition on March 16, 2018. (Id., Exs. H, I.) The parties, however, agreed to cancel that deposition date due to the death of Defendants’ counsel.

Plaintiffs’ argument that Defendant received notice because they sent the notice to two of Mr. Zuiderweg’s personal email addresses is unpersuasive and demonstrates Plaintiffs engaged in conduct contrary to the Attorney Guidelines of Civility and Professionalism. Plaintiffs knew that Defendants’ counsel had recently passed away.

Second, there is no evidence that Defendant failed to comply with a court order. Plaintiffs have never moved to compel Defendant to appear at a second deposition. The court’s October 26, 2017 minute order granted Plaintiffs’ motion to compel Defendant to produce documents requested in the deposition notice within 30 days. Plaintiffs do not dispute that Defendant produced documents in November 2017. To the extent Plaintiffs were not satisfied with the documents Defendant produced in November, Plaintiffs should have filed a motion to compel further responses and/or a motion to compel compliance with the order before seeking severe sanctions. Plaintiffs cannot just conclude that the documents produced were not in compliance and seek terminating or issue sanctions. Further, because of the circumstances of the case and Defendants’ counsel’s unexpected passing, it cannot be concluded at this time that less severe sanctions are futile. Plaintiffs’ motion for sanctions is DENIED.

Given the parties’ contentious discovery efforts to date, some entirely avoidable and an improper use of judicial resources, the court is likely to appoint a discovery referee under CCP § 639(a) if the parties continue to be unable to resolve these issues on their own.

Unless waived, notice of ruling by moving party.