18-CIV-03368 JENNIFER STEPHENSON, ET AL. VS. ROBIN LOVE, ET AL.

JENNIFER STEPHENSON ROBIN LOVE
JOSHUA J. BORGER MICHAEL G. YORK

CROSS-DEFENDANTS SERENO PROPERTIES’ AND JOHN FAYLOR’S MOTION FOR TERMINATING SANCTIONS OR, IN THE ALTERNATIVE, FOR ISSUE, EVIDENCE, AND/OR MONETARY SANCTIONS TENTATIVE RULING:

Cross-Defendants Sereno Properties’ and John Faylor’s Motion for Terminating Sanctions or, in the Alternative, for Issue, Evidence, and/or Monetary Sanctions, filed 10-25-19, is GRANTEDIN-PART and DENIED-IN-PART. The request for terminating and issue sanctions is DENIED. The request for evidentiary and monetary sanctions is GRANTED-IN-PART, as set forth below.

These consolidated cases arise from a cancelled real estate sales transaction involving the Love Cross-Complainants’ property in East Palo Alto. After the prospective sellers (the Loves) refused to sell the property as contemplated by the Listing Agreement, the prospective buyers (Stephenson and D’Paiva) and the listing agent (Sereno) filed suit against the Loves, who in turn filed a 10-29-18 Cross-Complaint against Sereno and its employee (John Faylor), alleging claims for breach of contract, negligence, and breach of fiduciary duty. This motion pertains to the Loves’ Cross-Complaint. In April and May 2019, counsel for Cross-Defendants Sereno and Faylor served the Loves with written discovery requests, and noticed the Loves’ depositions. By any objective measure, the Loves have refused to participate in discovery.

The Loves’ refusal to participate in written discovery

In April 2019, Cross-Defendant Sereno served the Loves with written discovery requests (interrogatories, request for production, and requests for admission), seeking identification of all facts, witnesses, and documents supporting the allegations in the Loves’ Cross-Complaint. Responses were due May 9, 2019, roughly five months prior to the then-scheduled Oct. 2019 trial date. The Loves did not serve objections to the discovery; nor did they serve any responses, even after Sereno’s counsel’s extensive meet and confer efforts. On 6-4-19, Sereno filed a motion to compel the Loves to respond. In July 2019, given the upcoming Oct. 2019 trial date, Sereno requested and obtained a continuance of the Oct. trial date to Feb. 20, 2020. See 7-18-19 Order. Sereno noted in its request to continue the trial date that the Loves had refused to serve discovery responses despite Sereno’s repeated requests, and given the then-scheduled Sept. 2019 close of discovery and the Court’s busy Law & Motion calendar, Sereno needed additional time to obtain an order compelling responses to its basic discovery requests in order to properly prepare for trial. Id. On 9-23-19, after the trial was continued, the Court granted Sereno’s motion to compel, which the Loves did not oppose. The 9-23-19 Order required the Loves to serve written responses to Sereno’s discovery requests, without objections, within 10 days. The Loves disregarded the Court’s Order, and have continued to do so for months, despite Sereno’s repeated requests for these discovery responses. The discovery close was already once continued, and is now set to close next month (Jan. 2020). The Love’s responses to Sereno’s discovery requests are about 8 months overdue.

The Loves’ refusal to appear for deposition

On May 31, 2019, Cross-Defendants Sereno and Faylor served the Loves with deposition Notices, setting their depositions for 7-16-19 and 7-17-19. The Notices included document requests that mirrored the Requests for Production previously served on the Loves in April 2019. The Loves did not serve objections to these initial deposition Notices, nor did they object to any of the later deposition Notices. Yet they have never appeared for deposition. Without belaboring the details, which are set forth in the 10-25-19 and 12-5-19 Barnes declarations, the Loves, through their counsel Michael York, have by all appearances repeatedly refused to appear for deposition in the lawsuit that they filed. For many months after serving the May 2019 deposition Notices, Sereno and Faylor’s counsel attempted to re-schedule the deposition dates and informally persuade the Loves’ counsel to present his clients for deposition, without success. Most recently, on 11-18-19, the Court granted Sereno’s and Faylor’s motion to compel the depositions, and ordered the Loves to appear within 20 days, and to produce all of the documents requested in the deposition Notices. As they did with respect to the 9-23-19 Order compelling responses to the written discovery, the Loves appear to have disregarded the 11-18-19 Order as well.

The Loves’ Opposition brief

Despite not opposing any of the underlying discovery motions, on 11-27-19, the Loves filed and served an Opposition to this motion for sanctions. The Opposition does not dispute any of the allegations of discovery abuse, but states that the Loves intend to serve written discovery responses (due 8 months ago) sometime prior to the 12-2-19 hearing on this motion. That representation was not made under oath, however, because the Opposition is not supported by a declaration. The Opposition was also improperly served, in violation of Code Civ. Proc. § 1005, which resulted in Sereno’s and Faylor’s counsel having had virtually no time to prepare a Reply brief. See 12-5-19 Barnes Decl.

Sereno’s Motion for Evidentiary Sanctions

Cross-Defendant Sereno Properties’ request for evidentiary sanctions is GRANTED-IN-PART. Code Civ. Proc. § 2023.030. The Loves’ Cross-Complaint alleges that Sereno breached the Listing Agreement, and was negligent and breached a fiduciary duty to the Loves with respect to the planned sale of the property. Sereno’s written discovery, served in April 2019, sought identification of all facts, witnesses, and documents supporting the Love’s allegations against Sereno in the Cross-Complaint. The Loves should have provided this basic information eight months ago, well before the initial Oct. 2019 trial date, well before the Court ordered the Loves to respond in Sept. 2019, and before the Court ordered the Loves to appear for their depositions. Discovery is not optional, and the Loves do not have the right to ignore the Court’s orders and delay providing discovery until the eve of trial. As an evidentiary sanction, the Loves may not offer at trial or in any pre-trial motion any evidence of any facts, whether by witness, documents, or otherwise, supporting the Love’s contentions addressed in Sereno’s Special Interrogatories, Set One, served on 4-4-19. See 10-25-19 “Master List of Exhibits,” Exhs. 3-4.

Faylor’s Motion for Evidentiary Sanctions

Cross-Defendant Faylor’s request for evidentiary sanctions is DENIED on the grounds that Faylor did not serve the written discovery requests that culminated in the 9-23-19 Order compelling responses. Faylor served the deposition Notices, but an Order compelling the Loves to appear for deposition did not issue until 11-18-19, after this motion was filed.

Monetary Sanctions

Cross-Defendants Sereno’s and Faylor’s motion for monetary sanctions is GRANTED, jointly and severally against the Loves and their counsel, Michael York, in the amount of $2,799.75, consisting of:
 $2,100 (fees incurred for this motion) (7 hrs. x. $300/hr. = $2,100);  $60 (filing fee);  $285 (dep. transcript for Sean Love’s cancelled 8-13-19 dep);  $354.75 (dep. transcript for Robin Love’s cancelled 8-20-19 dep).  Total: $2,799.75.
See 10-25-19 and 12-5-19 Barnes declarations. The sanctions shall be paid to Sereno’s counsel within 20 days of this Order. Code Civ. Proc. § 2023.030.

Sereno and Faylor also seek fees incurred in drafting two prior motions to compel discovery, which the Court declines to award because the first motion to compel was denied for lack of proper service, and sanctions relating to the second (renewed) motion to compel were already previously considered by the Court.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Cross-Defendants Sereno and Faylor shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.