Case Number: KC065470 Hearing Date: May 02, 2014 Dept: J

Re: Leticia Anguiano v. Gabriel Paredes, etc., et al. (KC065470)

MOTION FOR TERMINATING SANCTIONS OR, ALTERNATIVELY, FOR ISSUE AND/OR EVIDENTIARY SANCTIONS, AND FOR MONETARY SANCTIONS

Moving Party: Plaintiff/Cross-Defendant Leticia Anguiano

Respondent: Defendant/Cross-Complainant Legagy Financial, Inc.

POS: Moving OK; No proof of service accompanies the opposition; Reply served by regular mail contrary to CCP § 1005(c)

The Complaint herein alleges that on or about 10/22/08, Defendants represented to Plaintiff that, in exchange for her loan of $120,000.00, they would concurrently convey to Plaintiff a 4% interest in Legacy Financial, Inc. (“Legacy”) and that they would repay the sums owing to Plaintiff by 10/22/12; but that Defendants had no intention of conveying any interest in Legacy and had no intention of repaying the amount due. The Complaint, filed on 1/22/13, asserts causes of action for:

1. Breach of Written Promissory Note
2. Money Had and Received
3. Breach of Written Contract
4. Breach of Implied Covenant of Good Faith and Fair Dealing
5. Fraud
6. Civil Conspiracy
7. Intentional Infliction of Emotional Distress
8. Conversion
9. Imposition of Constructive Trust
10. Accounting

On 4/25/13, Defendant Legacy filed a Cross-Complaint against Plaintiff for:

1. Breach of Assignment Agreement
2. Breach of Agent Agreement
3. Intentional Interference with Contractual Relations
4. Trade Libel
5. Trade Secrets Misappropriation

The Final Status Conference is set for 5/21/14. Trial is set for 5/23/14.

Plaintiff/Cross-Defendant, Leticia Anguiano’s moves for terminating sanctions or, in the alternative, for issue and/or evidentiary sanctions against Defendants Gabriel Paredes, Corissa Hernandez-Paredes, CP Hernandez Financial Corporation, Defendant/Cross-Complainant Legacy, Inc., and requests that they and their counsel of record, Omar S. Anorga, be ordered to pay monetary sanctions in the amount of $10,000.00.

“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.)

In this case, on 1/16/14, Judge Hoffstadt issued discovery orders as follows:

1) Defendant Gabriel Paredes to provide supplemental responses to Form Interrogatories 2.6, 2.11 and 15.1 (re affirmative defenses of Failure to Mitigate, Unclean Hands, Statute of Limitations, Superseding and Intervening Causes, Laches, and Offset);

2) Defendant Corissa Hernandez-Paredes to provide supplemental responses to Form Interrogatories 2.6, 2.11 and 15.1 (re affirmative defenses of Failure to Mitigate, Unclean Hands, Statute of Limitations, Superseding and Intervening Causes, Laches, and “Other Affirmative Defenses”);

3) Defendant CP Hernandez Financial Corporation to provide supplemental responses to form Interrogatory 15.1 (re affirmative defenses of Failure to Mitigate, Unclean Hands, Statute of Limitations, Superseding and Intervening Causes, Laches, Offset and “additional affirmative defenses”);

4) Defendant/Cross-Complainant Legacy Financial, Inc. to provide supplemental responses to Form Interrogatory 15.1 (re affirmative defenses of Failure to Mitigate, Unclean Hands, Statute of Limitations, Superseding and Intervening Causes, Laches and Offset); and to provide supplemental responses to Form Interrogatory 17.1 as to nos. 2-4, 10-12, 14, 18, 26, and 32-36.

5) All Defendants to provide supplemental responses to Request for Production of Documents Nos. 1-2, 4-5, 7-8, 10-12, 14-16, 22-23, 27-28, 32-35, 41, 45, 51, 53-57, 62, 66, 68, 81-82, 87, 90-91, 98-102, 105 and 107.

6) Objections are waived.

7) Defendants and their counsel to pay sanctions of $1,500.

The Order of 1/16/14 was later amended to order Defendants to comply within 10 days. (Plaintiff presents evidence of other litigation conduct by Defendants that does not involve the Order of 1/16/14, but none that rise to the standard of “unusual circumstances.” Thus, the Court will focus on the Order of 1/16/14.)

On February 6, 2014, Defendants made an apparent effort to comply with the order of 1/16/14 by providing supplemental responses. Thus, the court finds that there is not a willful violation of the order. However, the supplemental responses contained objections (which had been ordered waived), were incomplete, contained legal conclusions instead of facts, and as to document responses, failed to comply with CCP Section 2031.280(a), all as more thoroughly described in the moving party’s Separate Statements. (The Opposition Brief fails to include a separate statement). Thus, Defendants have failed to comply with the Order of 1/16/14, but their failure to comply does not appear to be willful. Therefore, the motion for terminating, issue, and/or evidentiary sanctions is denied, but Defendants are ordered to fully comply with the court’s order, without objection, within 7 days.

“The 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. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both.” C.C.P. §2023.030(a).

The court orders Defendants and their counsel of record to jointly pay monetary discovery sanctions of $6,310.00 to counsel for Plaintiff(25 hours x $250 per hour, plus a $60 filing fee) within 7 days.