Gerald Bittner v. Daniel Nelson, et al		CASE NO. 111CV200099
DATE: 31 October 2014	TIME: 9:00	LINE NUMBER: 4

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 30 October 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 31 October 2014, the motion of Plaintiff Gerald Bittner for terminating, issue, evidentiary, and monetary sanctions was argued and submitted.

Defendants Daniel Nelson, Global Cinema Distribution, LLC (California), Global Cinema Distribution, LLC (Nevada), Joel Nelson, California Film Investments, LLC, Golden Leaf Pictures, Lava Entertainment Holdings, LLC dba Golden Leaf Pictures did not file formal opposition to the motion.[1]

1. Statement of Facts.

This matter arises out of alleged fraud and breach of contract claims. Plaintiff Gerald Bittner alleges that Defendant Dan Nelson and Joel Nelson, through several corporate identities, induced Mr. Bittner to enter into a contract with them, stating that if Mr. Bittner invested with the Nelsons, they would recoup his investment upon release of a feature film. Mr. Bittner alleges he never received any money back.

1. Discovery Dispute.

Plaintiff served each Defendant with discovery on 29 April 2014. Responses were due 29 May 2014. However, Plaintiff agreed to an extension until noon of 13 June 2014, conditioned that Defendants’ responses were due on that date via e-mail and mail and that these responses were verified by e-mail and mail. This extension was confirmed by Defendant’s counsel.

 

At 8:38 p.m. on 13 June 2014, Defendants, except for Defendant California Film Investments, served unverified responses, including objections, on Plaintiff. After Plaintiff addressed its perceived issues with Defendant’s responses, Plaintiff asked for verified code-compliant responses by 23 June 2014.

On 20 June 2014, Defendants emailed Plaintiff a document captioned “Verification of Dan Nelson” purporting to verify all responses on behalf of all parties. However, Dan Nelson’s verification did not speak to his authority to bind the business entity Defendants and was therefore defective, except as to him. On 25 June 2014, Defendants served another verification where Dan Nelson identified himself as a former manager of three of the business entity Defendants.

After further unfruitful meet and confer attempts, Plaintiff filed motions to compel further responses to interrogatories and requests for production of documents and to have matters deemed admitted on 25 July 2014. This Court heard the motions on 22 August 2014 and issued an order granting the motions on 31 August 2014. The order was filed 2 September 2014. Defendants were obligated to respond by 22 September 2014.

On 19 September 2014, Defendant Dan Nelson e-mailed Plaintiff’s counsel stating “Check went out…..” with an attachment showing a cashier’s check in the amount of $7,050, the amount of sanctions this Court ordered Mr. Nelson, along with his co-Defendants and his former counsel, to pay to Plaintiffs.

On 23 September 2014, Plaintiff’s counsel sent a letter to each Defendant by mail, and to Defendant Dan Nelson by e-mail, stating that the deadline to respond had passed and that Plaintiff would file a motion for further sanctions if Defendants did not provide code-compliant responses by 25 September 2014.

On 25 September 2014, Defendant Dan Nelson responded via e-mail seeking an additional week to provide the discover responses. Plaintiff’s counsel rejected an extension, claiming that based on Defendant’s prior history, such an extension would be fruitless. Defendant had no further contact with Plaintiff since 25 September 2014.

On 3 October 2014, Plaintiff filed the instant motion seeking termination sanctions as to Dan Nelson’s cross-complaint, and issue or evidentiary sanctions as to Defendant’s answer.

Defendants filed no opposition to this motion.

III.     Analysis.

1.                Sanctions in General

Code of Civil Procedure, § 2023.040 states: “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”  (See Rule of Court 2.30).

The Court may impose monetary, evidentiary, contempt or terminating sanctions where a party is engaging in conduct that is a misuse of the discovery process.  (See Code Civ. Pro. § 2023.030).  Misuses of the discovery process include but are not limited to:

(d) Failing to respond or to submit to an authorized method of discovery; (g) Disobeying a court order to provide discovery. (Code Civ. Pro. § 2023.010).

“If a party fails to obey an order compelling further response, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction…lieu of, or in addition to, that sanction, the court may impose a monetary sanction.” (Code Civ. Proc. § 2031.310(i)). “Absent exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system.” (Code Civ. Proc. § 2031.060(i)).  The exact circumstances in which sanctions may be granted varies based on the type of sanctions.

1. Non-Monetary Sanctions

Two facts are prerequisite to the imposition of non-monetary sanctions: (1) there must be a failure to comply with a court order; and (2) the failure must be willful. (See Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1102). Even where these facts are present, however, the trial court has broad discretion in imposing discovery sanctions. (See Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1293). In exercising this discretion, the court of appeal has indicated that the trial court should consider both the conduct being sanctioned and its effect on the party seeking discovery. (See Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992).

Additionally, the trial court should “attempt to tailor the sanction to the harm caused by the withheld discovery.” Id.  The Court’s discretionary authority in determining the appropriate sanction is limited by the principle that discovery sanctions are meant to be remedial rather than punitive. (See Kahn v. Kahn (1977) 68 Cal.App.3d 372, 381). Put another way, the discretionary imposition of a sanction is proper when it is suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery sought, but not when it places the prevailing party in a better position than if discovery had been obtained. (See Wilson v. Jefferson (1985) 163 Cal.App.3d 952, 958).

Finally, non-monetary sanctions are imposed upon an incremental bases depending upon the severity of the violation. (See Doppes 174 Cal.App.4th at 992). “If a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse.” Id. (internal quotation marks and citations omitted).

In the discovery context, willfulness may be found where the responding party “understood his [or her] obligation, had the ability to comply, and failed to comply.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 787).  “A conscious or intentional failure to act, as distinguished from accidental or involuntary noncompliance, is sufficient to invoke a penalty.” (Id. at 787-788 (citing Snyder v. Sup. Ct., 9 Cal.App.3d 579, 587 (1970)).

1. Terminating Sanctions on Cross-Complaint

Code of Civil Procedure, § 2023.030(d) states that: “the Court may impose terminating sanctions by: [an] order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process… [an] order staying further proceedings by that party until an order for discovery is obeyed…[an] order dismissing the action, or any part of the action, of that party…[or an] order rendering a judgment by default against that party. (Code Civ. Pro. § 2023.030(d)).  Where a party fails to comply or fails to provide a timely response to a granted order compelling responses to a discovery motion, the Court may impose sanctions including terminating sanctions. (See Code Civ. Pro. § 2030.300(e)(Regarding terminating sanctions in the case of motions for further responses to interrogatories); Code Civ. Pro. § 2031.310(i)(Regarding terminating sanctions in the case of motions for further responses for demands for inspection); Code Civ. Pro. § 2031.320(c)(Regarding terminating sanctions where a party fails to permit inspection despite previous agreement);

However, ordering terminating sanctions is not an action this Court can undertake without careful consideration; and only in circumstances where a violation is willful, preceded by a history of abuse and the evidence shows that a less severe sanction would not produce compliance with the discovery rules.  (See Van Sickle v. Gilbert (2011) 196 Cal. App. 4th 1495, 1516 (Granting terminating sanctions where a lawyer failed to respond to numerous special interrogatories and demands for production of documents, failed to respond to motion to compel discovery, failed to obey a court order to provide discovery, and failed to respond to demands for production even after filing motion for relief from default.); Doppes 174 Cal. App. 4th at 992 (Holding that trial court abused its discretion in failing to grant terminating sanctions against defendant who engaged in persistent and serious misuse of the discovery process); Mileikowsky v. Tenet Healthsystem (2005) 128 Cal. App. 4th 262, 279 (Holding that terminating sanctions were not an abuse of discretion where appellant repeatedly failed to answer discovery requests despite numerous extensions sought and granted, the issuance of court orders and monetary sanctions); Sec. Pac. Nat. Bank v. Bradley (1992) 4 Cal. App. 4th 89 (Overturning trial court on error for granting terminating sanctions where defendant’s failure to file separate responsive statement was not willful)).  Where these conditions are met, the Court is justified in ordering terminating sanctions.  (See Id).

Here, this Court ordered Defendant to serve code-compliant discovery on Plaintiff. Defendant missed the deadline and even two weeks after the deadline failed to comply with the court order. Mr. Nelson e-mailed Plaintiff’s counsel seeking an additional week, which Plaintiff refused, but still did not produce the required discovery. Mr. Nelson’s pattern of delay and non-compliance to respond to discovery appears habitual and the Court doubts that lesser sanctions will produce any fruitful results as relates to the Cross-Complaint.[2] Terminating sanctions are appropriate.

The motion of Plaintiff for terminating sanctions on Defendant Dan Nelson’s Cross-Complaint is GRANTED.  Defendant Dan Nelson’s Cross-complaint is STRUCK and the Cross-Complaint is DISMISSED WITH PREJUDICE.

1. Issue or Evidentiary Sanctions on Answer

Evidentiary Sanctions

Where evidentiary sanctions are appropriate under the two-part general standard for non-monetary sanctions explained above, the Court may prohibit a party from introducing designated matters in evidence. (See Code Civ. Pro. § 2023.030(c)).  Where a party fails to comply or fails to provide a timely response to a granted order compelling responses to a discovery motion, the Court may impose sanctions including evidentiary sanctions. (See Code Civ. Pro. § 2030.300(e)(Regarding evidentiary sanctions in the case of motions for further responses to interrogatories); Code Civ. Pro. § 2031.310(i)(Regarding evidentiary sanctions in the case of motions for further responses for demands for inspection); Code Civ. Pro. § 2031.320(c)(Regarding evidentiary sanctions where a party fails to permit inspection despite previous agreement); The sanctions must be proportionate to the conduct that is being sanctioned.  (See McGinty v. Superior Court (6th Dist. 1994) 26 Cal. App. 4th 204, 211).  Strong evidence of the appropriateness of evidentiary sanctions can include: a long history of abuse of process by the non-moving party, continuous willful obstructive conduct by the non-moving party, or egregious interference with the opposing party’s ability to make a case. (See Id. At 212).  The Court should consider the impact of excluding the evidence at trial and the extent to which it prejudices the sanctioned party in determining appropriateness. (See Id. at 212-213).  However, the fact that a sanction is seriously detrimental to the sanctioned party does not itself make an evidentiary sanction inappropriate. (See Pate v. Channel Lumber Co. (1997) 51 Cal. App. 4th 1447, 1455).  This is because the detrimental effects of an evidentiary sanction are incidental to the proper objective of appropriate evidentiary sanctions. (See Id.).

Issue Sanctions

Where non-monetary sanctions are appropriate, “the court may impose an issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process.” (Cal. Civ. Proc. § 2023.030(b)).  “The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.” (Id.).  Where a party fails to comply or fails to provide a timely response to a granted order compelling responses to a discovery motion, the Court may impose sanctions including issue sanctions. (See Code Civ. Pro. § 2030.300(e)(Regarding issue sanctions in the case of motions for further responses to interrogatories); Code Civ. Pro. § 2031.310(i)(Regarding issue sanctions in the case of motions for further responses for demands for inspection); Code Civ. Proc. § 2031.320(c)(Regarding issue sanctions where a party fails to permit inspection despite previous agreement).

According to Plaintiff’s notice of motion, Plaintiff seeks 65 issue sanctions and 72 evidentiary sanctions. Plaintiff filed a separate statement which is primarily a copy of Plaintiff’s prior separate statement with additional justifications for sanctions.[3] The separate statement only identifies each issue and evidentiary sanction requested by number, requiring the Court to continually look back and forth between the notice of motion and the separate statement. See Cal. Rules of Court, rule 3.1345(c).[4] However, there is sufficient information available to the Court for it to make an informed decision.

Because of this Court’s resolution of the terminating sanctions motion and because the requests for issue sanctions on issues i-xxiv refer to the Cross-Complaint, these matters are deemed MOOT. Plaintiff’s requests for evidentiary sanctions on items xvi, xxiv, lxxi parts 1-4, and lxxii parts 1-4 are likewise MOOT.

The Court reviewed Plaintiff’s separate statement and agrees that issue and evidentiary sanctions are appropriate for those matters that Plaintiff for which justification was articulated. The Court will award issue sanctions on all matters indicated in Plaintiff’s notice of motion. The Court will award evidentiary sanctions on all matters except for item lxiii (63), which relates to correspondence between California Film Investments and Lava Entertainment, and item lxxii (72) part 6, which relates to the identity of the contracting parties.

The Court orders that the following issues are found in favor of Plaintiff:

1. Global Cinema Distribution Nevada is the alter ego of Dan Nelson.
2. California Film Investments is the alter ego of Dan Nelson.
3. Golden Leaf Pictures is the alter ego of Dan Nelson.
4. Lava Entertainment is the alter ego of Dan Nelson
5. The formation of all agreements alleged in the pleadings were formed as set forth in Plaintiff’s Third Amended Complaint
6. The contracting parties to the “investment agreement” dated 4 March 2010 were Plaintiff and Global Cinema Distribution Nevada, acting as Dan Nelson’s alter ego.
7. At the time that Plaintiff entered into the “investment agreements” with Global Cinema Distribution, Global Cinema Distribution Nevada did not have the capacity to contract as a separate business entity other than as Dan Nelson’s alter ego.
8. The “investment agreement” dated 8 March 2010 between Plaintiff and Global Cinema Distribution contained a latent ambiguity regarding the identity of the contracting party Global Cinema Distribution, due to Dan Nelson’s defrauding of Plaintiff as described in the pleadings.
9. The “investment agreement” dated 30 March 2010 between Plaintiff and Global Cinema Distribution contained a latent ambiguity regarding the identity of the contracting party Global Cinema Distribution, due to Dan Nelson’s defrauding of Plaintiff as described in the pleadings.
10. The material terms of the 4 March 2010, 8 March 2010, and 30 March 2010 “investment agreements” are as set forth in paragraphs 56, 60, and 66 of Plaintiff’s Third Amended Complaint.
11. Following the formation of the 4 March 2010 “investment agreement”, no subsequent events excused any defendants’ performance thereunder.
12. Following the formation of the 8 March 2010 “investment agreement”, no subsequent events excused any defendants’ performance thereunder.
13. Following the formation of the 30 March 2010 “investment agreement”, no subsequent events excused any defendants’ performance thereunder.
14. Following the formation of the “personal guaranty” between Plaintiff and Dan Nelson, no subsequent events excused Dan Nelson’s performance thereunder.
15. None of the defendants has ever paid Plaintiff any sums of money under any of the March 2010 “investment agreements”.
16. Plaintiff has demanded the return of his $650,000 of investment monies, but none of the defendants has returned any portion of these funds.
17. From before the tame that Plaintiff entered into the “investment agreements” dated 4 March 2010, 8 March 2010, and 30 March 2010 until the present date, Dan Nelson intentionally withheld the following facts from Plaintiff for the purpose of defrauding him, which facts Plaintiff did not know or have reason to know until shortly before the filing of Plaintiff’s Third Amended Complaint:
18. That Defendant Dan Nelson was the brother of Plaintiff’s dental patient Joel Nelson.
19. That Global Cinema Distribution Nevada was the alter ego of Dan Nelson.

iii.            That California Film Investments was the alter ego of Dan Nelson.

1. That Golden Leaf Pictures was the alter ego of Dan Nelson.
2. That Lava Entertainment was the alter ego of Dan Nelson.
3. That Global Cinema Distribution Nevada was insolvent and unable to fulfill its distribution agreement with 5 Stick Films due to lack of funds.

vii.     That the terms of the 8 March 2010 and 30 March 2010 “investment agreements” were materially different from the terms of the 4 March 2010 “investment agreement” despite Dan Nelson’s repeated written and oral assurances to the contrary.

viii.    That, on or about 16 March 2010, Dan Nelson caused 5 Stick Films and Global Cinema Distribution to amend their distribution agreement to change the payment terms and the distributor of the film from Global Cinema Distribution Nevada to Global Cinema Distribution, LLC, a California limited liability company to be formed.

1. That, on or about 17 March 2010, the articles of organization of Global Cinema Distribution, LLC, a California limited liability company were filed with the California Secretary of State.
2. That there existed two different entities (Global Cinema Distribution Nevada and Global Cinema Distribution, LLC, a California limited liability company which Dan Nelson referred to by the same name, “Global Cinema Distribution”.
3. That, on or about 1 April 2010, Dan Nelson and Joel Nelson executed a confidential agreement by which Global Cinema Distribution, LLC, a California limited liability company agreed to undertake distribution of the film “La Mission” instead of Global Cinema Distribution Nevada, with the result that Plaintiff’s monies would not be used by Global Cinema Distribution Nevada to promote, distribute, or otherwise earn profit from the movie “La Mission”.

xii.     That, on or about 1 April 2010, Dan Nelson and his brother Joel Nelson executed a confidential agreement by which they agreed to distribute revenues from “La Mission” first to “third party” distribution expenses – i.e., to Dan Nelson’s alter ego Golden Leaf Pictures; then to California Film Investments (as Dan Nelson’s alter ego) in the amount of $540,000; and then last to Plaintiff if any funds remained.

xiii.    The following defendants and former defendants were improperly paid in first priority from the revenues of the film “La Mission” (if any revenues indeed existed), rather than Plaintiff: Dan Nelson’s alter ego Golden Leaf Pictures and Global Cinema Distribution LLC, a California limited liability company.

8. Defendant Dan Nelson, himself personally, and through his alter ego entities, committed the following conduct deliberately, maliciously, with a conscious disregard for Plaintiff’s rights, and knowing that Plaintiff would be substantially certain to suffer damage as a result:
9. In or about March 2010, Defendant substantially interfered with $650,000 of Plaintiff’s investment monies by misappropriating them for his own purposes including personal wealth increase, and by not using the investment monies for the purposes which Dan Nelson had promised to use them for, and by commingling the investment monies with Dan Nelson’s personal funds and/or with the funds of organizations in which Plaintiff did not invest.
10. In or about March 2010, Defendant retained a total of $650,000 of Plaintiff’s money without Plaintiff’s consent, and/or transferred it to others without Plaintiff’s consent
11. In the past, Defendant Dan Nelson has used the names “Dan E. Nelson” and “Dan Ethan Nelson” and was convicted of a felony under at least one of those names.
12. Plaintiff’s first cause of action for “Fraud” is found in favor of the Plaintiff.
13. Plaintiff’s second cause of action for “Conversion” is found in favor of the Plaintiff.
14. Plaintiff’s third cause of action for “Breach of Contract Against all Defendants” regarding the “investment agreements” is found in favor of Plaintiff.
15. Plaintiff’s fourth cause of action for “Breach of Contract against Dan Nelson” regarding the personal guaranty is found in favor of Plaintiff.
16. Defendants’ third affirmative defense for “No Misrepresentation – Non-Actionable Opinion” is found to be without merit.
17. Defendants’ fourth affirmative defense for “No Reasonable Reliance” is found to be without merit.
18. Defendants’ sixth affirmative defense for “Estoppel” is found to be without merit.
19. Defendants’ seventh affirmative defense for “Waiver” is found to be without merit.
20. Defendants’ tenth affirmative defense for “Consent” is found to be without merit.
21. Defendants’ eleventh affirmative defense for “Lack of Assent, Fraud & Duress – Promissory Note Claims” is found to be without merit.
22. Defendants’ twelfth affirmative defense for “Ratification” is found to be without merit.
23. Defendants’ thirteenth affirmative defense for “Novation” is found to be without merit.
24. Defendants’ fourteenth affirmative defense for “Unclean Hands” is found to be without merit.
25. Defendants’ sixteenth affirmative defense for “Accord and Satisfaction” is found to be without merit.
26. Defendants’ seventeenth affirmative defense for “Excuse of Performance” is found to be without merit.
27. Defendants’ nineteenth affirmative defense for “Statute of Frauds” is found to be without merit.
28. Defendants’ twenty-first affirmative defense for “Privileged – Business Judgment” is found to be without merit.
29. Defendants’ twenty-second affirmative defense of “Usury” is found to be without merit.
30. Defendants’ twenty-third affirmative defense for “Standing” is found to be without merit.
31. Defendants’ twenty-fourth affirmative defense for “Third Party Causation” is found to be without merit.
32. Defendants’ twenty-fifth affirmative defense for “Damages Caused by Plaintiff” is found to be without merit.
33. Defendants’ twenty-ninth affirmative defense for “Lack of Contractual Privity” is found to be without merit.

 

The Court further orders that Defendant is prohibited from introducing evidence at trial regarding the following matters:

1. Documents, as that word is broadly defined, that support the existence or amount of any damages claimed by Dan Nelson.
2. Documents which are part of any agreement alleged in the pleadings.
3. Documents which evidence any part of any agreement alleged in the pleadings, not in writing.
4. Documents which modify any agreement alleged in the pleadings.
5. Documents which evidence any modification to any agreement alleged in the pleadings that is not in writing.
6. Correspondence between Dan Nelson and Plaintiff.
7. Correspondence between Dan Nelson and Global Cinema Distribution Nevada.
8. Correspondence between Dan Nelson and Global Cinema Distribution LLC, a California limited liability company.
9. Correspondence between Dan Nelson and California Film Investments.
10. Correspondence between Dan Nelson and Golden Leaf Pictures.
11. Correspondence between Dan Nelson and Lava Entertainment.
12. Correspondence between Dan Nelson and Joel Nelson in any way related to or regarding Global Cinema Distribution Nevada.
13. Correspondence between Dan Nelson and Joel Nelson in any way related to or regarding Global Cinema Distribution LLC, a California limited liability company.
14. Correspondence between Dan Nelson and Joel Nelson in any way related to or regarding the film “La Mission”.
15. Correspondence between Dan Nelson and Joel Nelson related to or regarding any of the March 2010 agreements entered into with Plaintiff and alleged in the pleadings.
16. Correspondence between Dan Nelson and anyone else related to or regarding Plaintiff.
17. Correspondence between Dan Nelson and anyone else related to or regarding the film “La Mission”.
18. Correspondence between Dan Nelson and anyone else related to or regarding any of the March 2010 agreements with Plaintiff and alleged in the pleadings.
19. Documents that relate to the film “La Mission”.
20. Documents that relate to the March 2010 agreements entered into by Plaintiff and alleged in the pleadings.
21. Documents that relate to Dan Nelson’s written personal guarantee.
22. Police reports filed by Dan Nelson relating to Plaintiff.
23. Correspondence between Global Cinema Distribution Nevada and Plaintiff
24. Correspondence between Global Cinema Distribution Nevada and California Film Investments
25. Correspondence between Global Cinema Distribution Nevada and Golden Leaf Pictures
26. Correspondence between Global Cinema Distribution Nevada and Lava Entertainment
27. Correspondence between Global Cinema Distribution Nevada and Joel Nelson related to or regarding Dan Nelson.
28. Correspondence between Global Cinema Distribution Nevada and Joel Nelson related to or regarding Global Cinema Distribution LLC, a California limited liability company.
29. Correspondence between Global Cinema Distribution Nevada and Joel Nelson related to or regarding the film “La Mission”.
30. Correspondence between Global Cinema Distribution Nevada and Joel Nelson related to or regarding any of the March 2010 agreements entered into by Plaintiff and alleged in the pleadings.
31. Correspondence between Global Cinema Distribution Nevada and anyone else regarding or relating to Plaintiff.
32. Correspondence between Global Cinema Distribution Nevada and anyone else regarding the film “La Mission”.
33. Correspondence between Global Cinema Distribution Nevada and anyone else regarding or related to the March 2010 agreements entered into by Plaintiff and alleged in the pleadings.
34. Correspondence between Golden Leaf Pictures and Global Cinema Distribution LLC, a California limited liability company.
35. Correspondence between Golden Leaf Pictures and California Film Investments
36. Correspondence between Golden Leaf Pictures and Joel Nelson related to or regarding Global Cinema Distribution Nevada.
37. Correspondence between Golden Leaf Pictures and Joel Nelson related to or regarding Global Cinema Distribution LLC, a California limited liability company.
38. Correspondence between Golden Leaf Pictures and Joel Nelson related to or regarding the film “La Mission”.
39. Correspondence between Golden Leaf Pictures and Joel Nelson related to or regarding any of the March 2010 agreements entered into by Plaintiff and alleged in the pleadings.
40. Correspondence between Golden Leaf Pictures and anyone else related to or regarding Plaintiff.
41. Correspondence between Golden Leaf Pictures and anyone else related to or regarding the film “La Mission”.
42. Correspondence between Golden Leaf Pictures and anyone else related to or regarding any of the March 2010 agreements entered into by Plaintiff and alleged in the pleadings.
43. Correspondence between Lava Entertainment and Global Cinema Distribution LLC, a California limited liability company.
44. Correspondence between Lava Entertainment and California Film Investments.
45. Correspondence between Lava Entertainment and Joel Nelson relating to or regarding Global Cinema Distribution Nevada
46. Correspondence between Lava entertainment and Joel Nelson relating to or regarding Global Cinema Distribution LLC, a California limited liability company.
47. Correspondence between Lava Entertainment and Joel Nelson relating to or regarding the film “La Mission”.
48. Correspondence between Lava Entertainment and Joel Nelson relating to or regarding any of the March 2010 agreements entered into with Plaintiff and alleged in the pleadings.
49. Correspondence between Lava Entertainment and anyone else relating to or regarding Plaintiff.
50. Correspondence between Lava Entertainment and anyone else relating to or regarding the film “La Mission”.
51. Correspondence between Lava Entertainment and anyone else relating to or regarding the March 2010 agreements entered into with Plaintiff and alleged in the pleadings.
52. Correspondence between Golden Leaf Pictures, Lava Entertainment, California Film Investments, and Plaintiff.
53. Correspondence between California Film Investments and Global Cinema Distribution LLC, a California limited liability company.
54. Correspondence between California Film Investments and Joel Nelson related to or regarding Global Cinema Distribution Nevada.
55. Correspondence between California Film Investments and Joel Nelson related to or regarding Global Cinema Distribution LLC, a California limited liability company.
56. Correspondence between California Film Investments and Joel Nelson related to or regarding the film “La Mission”.
57. Correspondence between California Film Investments and Joel Nelson related to or regarding any of the March 2010 agreements entered into by Plaintiff and alleged in the pleadings.
58. Correspondence between California Film Investments and anyone else related to or regarding Plaintiff.
59. Correspondence between California Film Investments and anyone else related to or regarding the film “La Mission”.
60. Correspondence between California Film Investments and anyone else related to or regarding any of the March 2010 agreements entered into by Plaintiff and alleged in the pleadings.
61. Percipient witness testimony regarding any of the following:
62. The formation of any agreement alleged in the pleadings.
63. The meaning of any terms in any of the agreements in the pleadings.

iii.            The performance, or failure to perform, of any agreements alleged in the pleadings.

1. The assignment or modification of any of the agreements alleged in the pleadings.
2. The identity of the contracting parties.
3. Any written or recorded statement obtained by or on behalf of Lava Entertainment from any individual regarding any facts alleged in the pleadings.

vii.     Any funds California Film Investments put into, or got out of, the efforts surrounding the film “La Mission”.

2. Documents regarding any of the following:
3. Any assignment or modification of any of the agreements alleged in the pleadings.
4. Any written or recorded statement obtained by or on behalf of Lava Entertainment from any individual regarding any of the facts alleged in the pleadings.

Plaintiff’s motion for issue and evidentiary sanctions are GRANTED IN PART as outlined above.

1. Monetary Sanctions.

Plaintiff makes a request for monetary sanctions.  The request is not code-compliant.  Code of Civil Procedure, § 2023.040.

The California Code of Civil Procedure states that the Court shall impose monetary sanctions in many different situations. Code Civ. Pro. § 2030.300(d) (Imposing monetary sanctions for a motion to compel further responses to interrogatories); Code Civ. Pro. § 2031.310(d) (Imposing monetary sanction against losing party for motion to compel further responses to inspection demand); Code Civ. Pro. § 2031.320(b) (Imposing monetary sanctions for failure to comply as agreed with inspection demand). However, where the Court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust” no monetary sanctions shall be imposed. (Code Civ. Proc. § 2031.060(h)). Where there are no opposition papers filed, the proper source of authority for monetary sanctions is Rule of Court 3.1348(a) as there has been no failed opposition.

In determining the amount for monetary sanctions the determination of a reasonable attorney’s fee involves multiplying the time spent and reasonable hourly compensation of each attorney involved in the presentation of the case. (Serrano v. Priest (1977) 20 Cal.3d 25, 48-49).  Sanctions should be awarded only for expenses actually incurred. (See Tucker v. Pacific Bell Mobile Services (1st Dist. 2010) 186 Cal.App.4th 1548, 1551).

Plaintiff failed to make a code-complaint motion for monetary sanctions. Plaintiff references that he seeks monetary sanctions in the caption of the notice of motion, but does not reference monetary sanctions in the body of the notice, aside from referencing sections of the Code of Civil Procedure that allow monetary sanctions. Plaintiff does not specifically state that he seeks monetary sanctions, but more importantly, does not state against whom he seeks these sanctions.

Plaintiff’s request for monetary sanctions is DENIED.

 

 

 

 

 

1. Order.

The motion of Plaintiff for terminating sanctions on Defendant Dan Nelson’s Cross-Complaint is GRANTED.  Defendant Dan Nelson’s Cross-complaint is STRUCK and the Cross-Complaint is DISMISSED WITH PREJUDICE.

Because of this Court’s resolution of the terminating sanctions motion and because the requests for issue sanctions on issues i-xxiv refer to the Cross-Complaint, these matters are deemed MOOT. Plaintiff’s requests for evidentiary sanctions on items xvi, xxiv, lxxi parts 1-4, and lxxii parts 1-4 are likewise MOOT.

Plaintiff’s motion for issue and evidentiary sanctions are GRANTED IN PART as outlined above.

Plaintiff’s request for monetary sanctions is DENIED.

 

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara

[1] “The failure to file a written opposition or to appear at a hearing or the voluntary provision of discovery shall not be deemed an admission that the motion was proper or that sanctions should be awarded.”  Rule of Court 3.1348(b).

[2] Plaintiff did not move for terminating sanctions as it applies to Defendants’ Answer, so the Court will not consider it.

[3] The Court notes and appreciates the multiple tabs making it easier to reference the different discovery devices. (See 2 September 2014 Court order.)

[4] In any future filings with items greater than 20, the Court would prefer if the parties would use Arabic instead of Roman numerals for each item. The Court notes that Plaintiff appears to have also had trouble with so many Roman numbers (e.g., Separate Statement as to Form Interrogatory 12.1 refers to sanctions appropriate for items xxxii-xxxiiv.)