Case Number: BC628927 Hearing Date: August 31, 2018 Dept: 73

8/31/18
Dept. 73
Rafael Ongkeko, Judge presiding

ALBERTO NINO JIMENEZ v. RICHARD TOBIN BAUM (BC628927)

Counsel for plaintiff/opposing party: Everardo Valencia
Counsel for defendant/demurring party: David Lynn

DEFENDANT’S MOTION FOR TERMINATING SANCTIONS OR IN THE ALTERNATIVE, EVIDENTIARY SANCTIONS AND ATTORNEY’S FEES, COSTS, AND MONETARY SANCTIONS OF $7,912.50 (filed 7/11/18)

Tentative ruling

Defendant’s motion is DENIED as to terminating and evidentiary sanctions. Defendants’ request for monetary sanctions is GRANTED in part in the reduced amount of $4,560 (10 hours at $450 + $60 filing fee). Plaintiff’s counter-request for sanctions is denied.

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 (here, none), boldface, italics, or the underscoring of text or case citations. Footnotes, if any, are added to the text at the end of the document. A hard copy will be available for the parties in court before the hearing.)

Defendant demanded documents concurrently with his notice of Plaintiff’s deposition served on March 1, 2018. On April 25, 2018, the parties stipulated to a deposition date and the production of documents.

On May 1, 2018, the court reviewed and approved the parties’ stipulation and order for deposition and production of documents by Plaintiff.

At the deposition, Plaintiff produced no documents. At the conclusion of the deposition, Plaintiff’s counsel promised to produce the requested documents. (Id., ¶ 9, Ex. F, p. 85:6-24.)

On May 2, 2018, defense counsel wrote Plaintiff’s counsel, requesting the documents. (Id., ¶ 10, Ex. G.) Plaintiff’s counsel responded that the documents would be sent by June 1, 2018. (Id., ¶ 10, Ex. H.) No documents were produced.

On June 26, 2018, defense counsel requested the documents again. (Id., ¶ 10, Ex. I.) No documents were produced.

On July 11, 2018, Defendant filed this motion.
On July 26, 2018, Plaintiff purportedly produced the documents.
On August 20, 2018, Plaintiff filed an opposition.
On August 24, 2018, Defendant filed a reply.

Motion for Sanctions

Defendant moves for terminating sanctions. Defendant asserts Plaintiff has refused to produce documents despite the court-approved stipulation. Defendant argues Plaintiff’s delay has substantially prejudiced Defendant’s summary judgment motion. Defendant’s last day to file the motion is August 24, 2018. Defendant will need time to prepare his papers given the almost-hopeless-confusing state of Plaintiff’s fourth amended complaint. Defendant asserts the stipulation is a court order, which Plaintiff failed to comply with. Defendant asserts Plaintiff’s conduct is willful. In support, Defendant explains that, at the deposition, Plaintiff responded to the inquiry about why he did not bring documents with him with: “No reason” and “I didn’t deem it necessary and I decided not to bring anything.” (David Lynn Decl., ¶ 9, Ex. F., p. 64:4-12.) In the alternative, Defendant requests Plaintiff be precluded form adducing or introducing evidence (1) that Defendant intentionally and substantially interfered with Plaintiff’s property, or (2) that Defendant’s conduct was a substantial factor in causing Plaintiff’s harm. Defendant argues Plaintiff has waived his right to object to production.

Defendant requests $7,912.50 in sanctions. This amount is based on Defendant’s counsel’s 17.45 hours spent in total, which includes time for the deposition notice correspondence, preparation of the stipulation and order, preparation and drafting of this motion, anticipated review of opposition motion, preparation of reply, travel and appearance at the hearing, and anticipated time to prepare for second session of Plaintiff’s deposition. (See David Lynn Decl., ¶ 14.) Defendant’s counsel’s hourly rate is $450. Defendant also seeks the $60 filing fee.

Opposition

Plaintiff argues that no terminating sanctions should be issued because Plaintiff produced documents on July 26, 2018. Plaintiff left the country on June 5, 2018 and defense counsel was notified. When Plaintiff returned, Plaintiff produced the documents. Plaintiff argues that Defendant is not prejudiced by the July document production because it is still one month before the summary judgment filing deadline. Plaintiff requests that the court deny the motion in full and award Plaintiff reasonable attorneys’ fees. Plaintiff does not specify any amount.

Reply

Defendant argues that the documents produced on July 26, 2018 are not the documents “at issue.” The documents produced were canceled checks, one attorney letter, a court reporter bill, and an untranslated, unaddressed, undated, unsigned document in Spanish. Defendant states that Plaintiff did not produce any emails, correspondence, copies of pleading, requested telephone bills, documents relating to the standstill agreement or other documents in the eight categories on which Plaintiff bases his conversion claim or his defense to Defendant’s cross-complaint. Defendant points out that Plaintiff does not provide any explanation or excuse as to why any other documents were not produced. As a result, Defendant argues there is no showing that Plaintiff complied with his discovery obligations—Plaintiff’s counsel’s statement that “the documents at issue were produced on July 26, 2018 to the best of Plaintiff’s ability” is an unsupported conclusion that should be disregarded. In addition, Defendant claims Plaintiff fails to prove his conduct was not willful; there is no factual basis for the statement that Plaintiff was out of the country and thus could not make an effort in his lawsuit. Because Plaintiff did not file a declaration himself, Plaintiff’s counsel’s statement that “Plaintiff did everything in his power to promptly produce said documents after concluding with circumstances” is meritless.
Analysis

When a party has engaged in discovery abuse, Code of Civil Procedure section 2023.030 provides a trial court with a number of different sanctions that may be imposed, such as monetary, issue, evidence, and terminating sanctions. With respect to terminating sanctions, a court may enter any of the following:

(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.

(Code Civ. Proc., § 2023.030(d).) Generally, less drastic sanctions are imposed first. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 796, superseded by statute on another ground as stated in Guzman v. General Motors Corp. (1984) 154 Cal.App.3d 438, 444.) To avoid sanctions, the burden of proving that a discovery violation was not willful is on the party on whom the discovery was served. (Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250, 252- 253.)

“A trial court has broad discretion to impose discovery sanctions, but two facts are generally prerequisite to the imposition of nonmonetary sanctions . . . : (1) absent unusual circumstances, there must be 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.) 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.) Terminating sanctions are authorized where the evidence shows that less severe sanctions will not be successful in compelling discovery responses. (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-80.)

Here, terminating and evidentiary sanctions are not warranted for Plaintiff’s purported failure to comply with the stipulation to appear at deposition and produce documents. Defendant cites no case law that establishes the stipulation here should be treated like an order to compel. And the conduct alleged does not demonstrate a history of discovery abuse, let alone willfulness. However, Plaintiff’s failure to produce documents at the deposition and belated failure to produce promised documents are grounds to impose monetary sanctions.

Defendants’ request for monetary sanctions is GRANTED, but reduced to $4,560 (10 hours at $450 + $60 filing fee).

Unless waived, notice of ruling by moving party.