Case Number: BC703352 Hearing Date: October 31, 2019 Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

STEPHANIE BATES, et al.

Plaintiffs,

vs.

CRYSTAL STAIRS, INC. et al,

Defendants.

CASE NO.: BC703352

[TENTATIVE] ORDER RE: DEFENDANTS’ MOTION FOR DISCOVERY SANCTIONS AGAINST PLAINTIFFS AND THEIR COUNSEL OF RECORD

Date: October 31, 2019

Time: 8:30 a.m.

Dept. 56

Jury Trial: February 10, 2020

MOVING PARTIES: Defendants Crystal Stairs, Inc. (“Crystal Stairs”) and William Pino

RESPONDING PARTIES: Plaintiffs Stephanie Bates (“Bates”), Denise Duvall (“Duvall”), and Deoneisha Oliver (“Oliver”)

BACKGROUND

Plaintiffs filed a complaint against Defendants alleging causes of action for: (1) employment discrimination (hostile environment) based upon race; (2) employment discrimination (disparate treatment) based upon race; (3) employment discrimination (hostile environment) based upon gender; (4) employment discrimination (disparate treatment) based upon gender; (5) retaliation for filing complaints of employment discrimination and unlawful harassment; (6) unlawful harassment under the California Fair Employment and Housing Act; (7) violation of California Labor Code, Section 1102.5 et seq. (whistleblower); (8) disability discrimination; (9) theft and conversion; and (10) violation of privacy rights and HIPPA. Plaintiffs’ complaint arises from alleged wrongful actions taking by Defendants during Plaintiffs’ employment with Defendant Crystal Stairs.

On September 27, 2019 Defendants filed a motion for an order seeking discovery sanctions against Plaintiffs and their attorney of record, Michael Traylor, jointly and severally. Defendants assert that Crystal Stairs has acted diligently in its attempts to collect basic discovery from Plaintiffs, yet Plaintiffs have continued to abuse the Discovery Act to Crystal Stairs’ detriment. Defendants seek terminating, evidentiary, and monetary sanctions against Plaintiffs and their counsel of record, Michael Traylor (“Traylor”).

A substitution of attorney form was filed on September 30, 2019 by each Plaintiff, Bates, Oliver, and Duvall indicating that Traylor was their former legal representative and that Rodney S. Diggs was their new legal representative.

On October 16, 2019, Traylor filed an opposition to Defendants’ motion for sanctions representing that he was the attorney for Plaintiffs. The Court finds that the opposition filed by Traylor is STRICKEN and will not be considered because the opposition was filed after he substituted out of this action as counsel for Plaintiffs. Even if the Court were to consider the opposition filed by Traylor, however, it would not change this Court’s analysis on the issues of terminating, evidentiary, or monetary sanctions.

The Court also STRIKES and will not consider the surreply filed by Plaintiffs in response to Defendants’ reply brief. A surreply is not an authorized pleading.

The Court finds that Defendants’ motion is technically unopposed due to the improper opposition filed by Traylor and the unauthorized surreply filed by Plaintiffs. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) As explained below, however, the Court will not impose all requested sanctions requested by Defendants.

Procedural History with Respect to Discovery

According to the declaration of Defendants’ counsel, Steven J. Pearse (“Pearse”): (1) Crystal Stairs served deposition notices on each of the three Plaintiffs on June 25, 2018. (Pearse Decl. at ¶ 3); (2) on June 29, 2018, Crystal Stairs served each Plaintiff with separate written discovery and on July 23, 2018, Defendant Pino served written discovery requests on Bates. (Id. at ¶¶ 4-5); (3) on July 23, 2018, Plaintiffs requested a 60-day extension to respond to the written discovery propounded by Crystal Stairs or to serve objections, to which Crystal Stairs offered a 30-day extension if Plaintiffs would provide deposition dates. (Id. at ¶ 6); (4) on July 27, 2018, Plaintiffs responded indicating that they needed a 45-day extension and Crystal Stairs indicated it would agree to the 45-day extension if Plaintiffs would provide their availability for deposition dates (Id.); and (5) Plaintiffs refused the offer and on August 2, 2018, Plaintiffs served a single boilerplate objection to each set of written discovery and objected to all of their depositions. (Id.)

Pearse also declares that: (1) multiple meet-and-confer efforts took place in August, 2018 with respect to Plaintiffs’ deficient responses to written discovery and the need to obtain mutually agreeable dates for Plaintiffs’ depositions. (Id. at ¶ 7); (2) Plaintiffs’ counsel agreed that he would supplement responses by October 31, 2018, to which Defendants refused such a long delay (Id.); (3) the parties agreed that Plaintiffs would supplement their responses to written discovery by October 8, 2018 (Id.); (4) Plaintiffs provided deficient supplemental responses on October 13, 2018, which was the date of Plaintiffs’ requested extension (Id. at ¶ 10); (5) Plaintiffs also failed to produce documents (Id.); and (6) due to Plaintiffs’ deficient supplemental responses, counsel declares that Defendants were forced to cancel Plaintiffs’ depositions. (Id.)

Additionally, Pearse declares that: (1) on November 7, 2018, Defendant Crystal Stairs initiated the meet and confer process again over Plaintiffs’ deficient supplemental responses and failure to produce any documents (Id. at ¶ 11); (2) Plaintiffs were substantively unresponsive to Defendants’ meet-and-confer efforts (Id. at ¶ 12); (3) an Informal Discovery Conference (“IDC”) was held on January 31, 2019 at which Plaintiffs failed to appear (Id. at ¶ 17); (4) the Court continued the IDC to February 15, 2019 (Id. at ¶ 18); (5) on February 15, 2019, an IDC was held. (Id. at ¶ 18); (6) at the IDC, Plaintiffs were ordered to provide supplemental responses to all written discovery, produce all responsive documents, and provide dates of availability for their depositions by March 8, 2019 (Id. at ¶ 19); and (7) Plaintiffs did not contact Defendants between February 15, 2019 and March 8, 2019. (Id. at ¶ 20.)

Pearse also states that: (1) Plaintiffs failed to serve any supplemental responses, produce documents, or provide dates of availability for their depositions by March 8, 2019 as ordered by the Court (Id. at ¶ 21); (2) Plaintiffs failed to provide complete discovery responses as on March 11, 2019 Plaintiffs’ counsel only provided responses to special interrogatories, requests for admission, and demands for production on behalf of Bates only (Id.); (3) on March 12, 2109, Plaintiffs’ counsel provided responses to special interrogatories, requests for admission, and demands for production on behalf of Bates and Oliver in response to discovery propounded by Crystal Stairs yet discovery was still outstanding including supplemental responses to form interrogatories and employment interrogatories served on each Plaintiff and separate written discovery served by Pino on Bates remains outstanding (Id. at ¶ 22); (4) on April 8, 2019, the Court ordered a hard copy of supplemental responses to form interrogatories be provided to Crystal Stairs no later than 5:00 p.m. on April 8, 2019 based on representation by Plaintiffs’ counsel that such responses had already been provided (Id.); (5) such responses were not provided until April 16th and 17th, 2019 and Plaintiffs failed to pay the sanctions of $5,000.00 ordered by this Court for failure to comply (Id. at ¶ 23); (6) on July 3, 2019, Crystal Stairs served supplemental interrogatories and requests for admission to which on July 30, 2019, the Plaintiffs responses did not provide any substantive responses (Id. at ¶ 24 and Exhibit 4); and (7) Plaintiffs objected to Crystal Stairs re-noticed deposition dates on July 9, 2019 and have ignored requests for them to provide mutually agreeable deposition dates. (Id. at ¶ 25 and Exhibit 5.)

DISCUSSION

Issue No.1: Terminating Sanctions

“The discovery statutes 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.) “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.” (Id.) “[C]ontinuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse.” (Id.) Where discovery violations are “willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with discovery rules, the trial court is justified in imposing the ultimate sanction.” (Id.) “A trial court has broad discretion to impose discovery sanctions, but two facts are generally a prerequisite to the imposition of nonmonetary sanctions.” (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.) Where discovery sanctions are requested against a party, there must be: (1) a failure to comply with a court order; and (2) the failure must be willful. (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.) “A decision to order terminating sanctions should not be made lightly.” (Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 701.)

While Plaintiffs have failed to comply with this Court’s prior discovery orders, as indicated above, under Creed an order to institute terminating sanctions is not one that should be made lightly. The Court therefore finds that terminating sanctions are not appropriate at this time.

Therefore, the Court will exercise its discretion and DENY Defendants’ request to impose terminating sanctions. Imposing terminating sanctions on Plaintiffs would amount to punishment.

Issue No. 2: Evidentiary Sanctions

“A trial court has broad discretion to impose discovery sanctions, but two facts are generally a prerequisite to the imposition of nonmonetary sanctions.” (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.) Where evidence sanctions are requested to be imposed against a party, there must be: (1) a failure to comply with a court order; and (2) the failure must be willful. (Id.) “[W]here nonmonetary sanctions are called for, they should be appropriate to dereliction, and should not exceed that which is required to protect the interests of the party entitled but denied discovery.” (Id.) “The sanctions the court may impose are such as are suitable and necessary to enable the party seeking discovery to obtain the objects of discovery he seeks, but the court may not impose sanctions which are designed not to accomplish the objects of discovery but to impose punishment.” (Id.) “[W]hen a party repeatedly but willfully fails to provide certain evidence to the opposing party as required by the discovery rules, preclusion of that evidence may be appropriate.” (Id.) Evidentiary sanctions are warranted “[i]f a lesser sanction fails to curb misuse.” (Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 701.)

Although Defendants’ motion is unopposed due to the procedural defects in the opposition and surreply as indicated above, and Plaintiffs have failed to comply with this Court’s prior discovery orders as indicated above, the Court will exercise its discretion and DENY Defendants’ request for evidentiary sanctions under Biles.

The Court, however, will give Plaintiffs’ new counsel an opportunity to comply with this Court’s prior orders. Plaintiffs are ordered to an Informal Discovery Conference (“IDC”) which is set for the same day as hearing on the instant motion for discovery sanctions, October 31, 2019. Any failure of Plaintiffs’ new counsel to comply with the Court’s above directive with respect to the IDC may result in terminating sanctions.

Issue No. 3: Monetary Sanctions

Defendants seek monetary sanctions against Plaintiffs and Traylor jointly and severally in the amount of $2,653.50.

Under California Code of Civil Procedure, Section 2023.030 “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees incurred by anyone as a result of that conduct.” “[T]he court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc. § 2023.030(a).) “The trial court has broad discretion in selecting discovery sanctions.” (Padron v. Watchtower Bible & Tract Society of New York, Inc. (2017) 16 Cal.App.5th 1246, 1259.) “Discovery sanctions are intended to remedy discovery abuse, not to punish the offending party.” (Id.)

Pearse declares that: (1) as a result of the flagrant discovery abuses of Plaintiffs and Traylor, Crystal Stairs has been severely prejudiced (Pearse Decl. at ¶ 27); (2) with respect to Defendants’ motion for sanctions, Crystal Stairs has incurred $1,288.50 at a rate of $195.00 per hour for drafting the motion and $60.00 in filing fees (Id.); (3) Crystal Stairs anticipates incurring an additional $1,365.00 replying to an opposition and attending the hearing on this motion (Id.); and (4) Plaintiffs and their counsel of record, Michael Traylor, should be jointly and severally sanctioned in the amount of not less than $2,653.50. (Id.)

As such, the Court will exercise its discretion and GRANT Defendants’ request for monetary sanctions and will award Defendants reduced monetary sanctions in the amount of $1,815.00 against Plaintiffs and Traylor. (Padron v. Watchtower Bible & Tract Society of New York, Inc. (2017) 16 Cal.App.5th 1246, 1259.) This amount represents 9 hours of work with respect to the motion at $195.00 per hour plus the $60.00 filing fee. Sanctions are to be paid by Plaintiffs and Traylor to Defendants within 20 days.

The Court is authorizing monetary sanctions against Traylor because: (1) he received notice of Defendants’ motion for discovery sanctions; (2) he was the attorney of record representing Plaintiffs at the time Defendants’ motion for discovery sanctions was filed and served; (3) he opposed Defendants’ motion for discovery sanctions; and (4) was the attorney of record during the period leading up to the filing of Defendants’ motion for discovery sanctions.

Moving Parties are ordered to give notice of this ruling. Also, the Court orders the moving parties to give notice of this Court’s ruling to Traylor.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 31st day of October 2019

Hon. Holly J. Fujie

Judge of the Superior Court