Judge: Anne Richardson, Case: 19STCV29010, Date: 2023-08-15 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 19STCV29010    Hearing Date: August 15, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Pleadings

Plaintiff Abraham Lopez sues various Defendants—with all the Defendants tied together through allegations of integrated enterprise—pursuant to an August 5, 2020 First Amended Complaint alleging claims of: (1) Retaliation under Qui Tam/California False Claims Act; (2) Disability Discrimination under the Fair Employment and Housing Act (“FEHA”); (3) FEHA Failure to Reasonably Accommodate or Engage in the Interactive Process; (4) FEHA Retaliation; (5) FEHA Harassment; (6) Failure to Prevent FEHA Discrimination, Harassment, and Retaliation; (7) Wrongful Termination; (8) Labor Code Whistleblower Retaliation; (9) Labor Code Failure to Provide or Pay Meal and Rest Breaks; (10) Labor Code Non-Payment of Wages; (11) Labor Code Failure to Provide Itemized Wage Statements; (12) Labor Code Failure to Pay Wages Upon Discharge and Associated Penalties; (13) Common Law Assault and Battery; (14) Negligent Hiring and Retention; (15) Intentional Infliction of Emotional Distress; and (16) Violation of Business and Professions Code section 17200, et seq.

In turn, Defendants/Cross-Complainants Alexander Demolition & Hauling—a Solid Waste Hauler company that disposes(d) of solid, construction, and demolition waste in landfills—and Felipe Davila—owner and operator of Alexander Demo—filed a December 5, 2022 Cross-Complaint against Plaintiff/Cross-Defendant Abraham Lopez and Cross-Defendants Omar Lopez, Elias Gonzalo Davila, and L.D. Construction and Demolition. The Cross-Complaint alleges claims of: (1) Tortious Claim for Breach of the Employee’s Duty of Loyalty; (2) Breach of Fiduciary Duty; (3) Conversion; (4) Fraud; and (5) Intentional Infliction of Emotion Distress.

Motions for Evidentiary, Issue, and Monetary Sanctions

On March 3, 2023, the Court granted a number of motions to compel initial discovery from Defendant/Cross-Complainant Alexander Demolition & Hauling (Alexander Demo) and Defendants Alexander Construction & Clean Up (Alexander C&C), Alexander Construction & Engineering (Alexander C&E), and Montoya’s Truck Rental (Montoya).

These included: (1) a motion to compel responses to Requests for Production, Set One from Alexander C&C; (2) motions to compel responses to Requests for Production, Sets Two and Three from Alexander Demo; (3) a motion to compel responses to Requests for Production, Set One from Alexander C&E; and (4) a motion to compel responses to Requests for Production, Set One from Montoya.

The Court also denied a motion for protective order made by Alexander Demo, Alexander C&C, Alexander C&E, Montoya, and Felipe Davila against the above and other discovery.

On June 29, 2023, July 5, 2023, and July 6, 2023, Plaintiff/Cross-Defendant Abraham Lopez filed four motions for evidentiary, issue, and monetary sanctions against Defendants Alexander Demo, Alexander C&C, Alexander C&E, and Montoya on the ground they each made non-Code compliant responses that improperly raised objections to the production requests raised in the March 3, 2023 Court ruling,

On July 6, 2023, the parties stipulated to consolidating the hearings on these motions to a single hearing set for August 15, 2023 and on July 10, 2023, the Court entered the stipulation.

On July 24, 2023, Alexander Demo, Alexander C&C, Alexander C&E, and Montoya, as well as Defendant/Cross-Complainant Felipe Davila, filed an “omnibus opposition” to the motions for sanctions.

On August 7, 2023, Plaintiff Lopez replied to the opposition.

On August 10, 2023, the above Defendants filed a “reply” to plaintiff’s motion for sanctions; however, such a “surreply” is not authorized by any statute or rule and will not be considered.

The motions for sanctions are now before the Court.

Motion for Sanctions

Legal Standard

If a party fails to obey a court order compelling an initial response to a request for production, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 of the Code of Civil Procedure (commencing with Section 2023.010) and, in lieu of or in addition to this sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010). (Code Civ. Proc., § 2031.300, subd. (c).)

Moreover, the court may impose monetary sanctions, issues sanctions, and evidentiary sanctions against a party who is misusing the discovery process. (See Code Civ. Proc., § 2023.030.) Misuses of the discovery process include disobeying a court order to provide discovery. (Code Civ. Proc., § 2023.010, subd. (g).)

“[T]rial courts should select sanctions tailored to the harm caused by the misuse of the discovery process and should not exceed what is required to protect the party harmed by the misuse of the discovery process.” (Dept. of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 191, disapproved of on other grounds in Presbyterian Camp & Conference Centers, Inc. v. Superior Court (2021) 12 Cal.5th 493.) Sanctions are generally imposed in an incremental approach. (Id.) Generally, the appropriate sanctions when a party repeatedly and willfully fails to provide evidence to the opposing party as required by the discovery rules is preclusion of that evidence from the trial. (Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 390, disapproved of on other grounds by Brown v. USA Taekwondo (2021) 11 Cal.5th 204.)

Order Granting Evidentiary, Issue, and Monetary Sanctions: DENIED.

The Court preliminarily notes these motions are not subject to the 45-day rule as they are not motions to compel further responses, but rather, sanction motions. (See Combined Opp’n, pp. 7-8.)

The Court also does not discuss the accusation of alteration of exhibits raised by Defendants in their opposition, both because the Court is not clear on what Defendants’ contentions are in this regard and because this accusation is irrelevant to reach the Court’s conclusion. (Combined Opp’n, pp. 9-10.)

Last, the Court finds that these motions are properly before this Court because they involve the alleged disobedience of a court order. (See Combined Opp’n, pp. 11, 12.)

Moving to the merits, the Court finds insufficient grounds to grant these motions.

As framed by Plaintiff Lopez, Defendants Alexander Demo, Alexander C&C, Alexander C&E, and Montoya have disobeyed the Court’s March 3, 2023 order by serving responses to production requests that are not “code compliant” and that improperly include objections, allegedly in contravention of this Court’s March 3, 2023 order. (See Mot., pp. 7 and/or 8; Mots., Butzen Decl., Ex. B [copies of the Requests for Production responses by these Defendants].)

However, the Court’s review leads to a different conclusion.

First, the Court’s March 3, 2023 order did not state Defendants needed to respond or produce documents without objections. (See 3/3/23 Minutes, pp. 7-8.)

Regardless, to the extent that Defendants objected to certain production requests, Defendants nevertheless also provided substantive answers thereto. (See, e.g., 6/29/23 Mot. [re: Alexander C&E], Butzen Decl., Ex. 2, RPD Nos. 3-6, 8-9, 11-18 24, 29, 33 [showing objections to production requests but also substantive response thereto, i.e., no responsive documents exist]; 7/6/23 Mot. [re: Alexander C&C], Butzen Decl., Ex. 2, RPD Nos. 3-6, 8-9, 11-18 24, 29, 33 [same]; 7/6/23 Mot. [re: Montoya, Butzen Decl.], Ex. 2, RPD Nos. 3-6, 8-9, 11-18 24, 29, 33 [same].) Defendants’ other responses to the discovery do not contain objections and substantively respond to the production requests. (See, e.g., 6/29/23 Mot. [re: Alexander C&E], Butzen Decl., Ex. 2, RPD Nos. 7, 19 [respectively, documents never existed, and Defendant will produce responsive documents]; 7/6/23 Mot. [re: Alexander C&C], Butzen Decl., Ex. 2, RPD Nos. 7, 19 [same]; 7/6/23 Mot. [re: Montoya, Butzen Decl.], Ex. 2, RPD Nos. 7, 19 [same]; 7/5/23 Mot. [re: Alexander Demo], Butzen Decl., Ex. 2, RPD Nos. 123, 133 [respectively, documents never existed, and Defendant will produce responsive documents].) None of these responses indicate that Defendants withheld or plan to withhold any responsive documents.

Defendants’ opposition also indicates that a production of documents was made on Plaintiff Lopez on April 21, 2023. (Combined Opp’n, Valencia Decl., ¶ 4, Ex. A.) Plaintiff Lopez did not argue in his moving papers or reply that such a production was not received by him or his counsel or that it was deficient. Instead, Plaintiff Lopez conclusorily argued that the responses that Plaintiff did receive were not code compliant because they improperly included objections. (See Mot., pp. 7 and/or 8.) Only in an exhibit does Plaintiff Lopez elaborate on these grounds. (See Mots., Butzen Decl., Ex. 4.) A review of the arguments show that they advocate form over substance, providing insufficient grounds to grant these motions, where Defendants went on to fully respond substantively, either agreeing to produce all responsive documents, or stating that none exist. (See Mots., Butzen Decl., Ex. 4 [copy of email from Plaintiff’s counsel to Defendants’ counsel arguing that responses to production were not code compliant based on objections in the responses and based on failure to meet requirements in Code Civ. Proc., §§ 2031.220, 2031.280, subd. (a)].)

Under these circumstances, the Court concludes that Defendants complied with the Court’s March 3, 2023 order and that Plaintiff Lopez’s motions lack merit.

Accordingly, no sanctions are merited here, whether evidentiary, issue, or monetary, and the motions are DENIED. 

Conclusion

Plaintiff/Cross Defendant Abraham Lopez’s Motions for Evidentiary and Issue Sanctions as well as Monetary Sanctions Against all four relevant Defendants are DENIED.

To the extent they have not done so, Defendants Alexander Demo, Alexander C&C, Alexander C&E, and Montoya are ORDERED to provide any further production to the outstanding production requests within 15 days of this order.

If necessary, Plaintiff Lopez may thereafter file a Code of Civil Procedure section 2031.320 or 2031.310 motion as necessary, with the 45-day trigger for the latter motion being the date of this order or the date of production, whichever comes later.