Judge: Anne Richardson, Case: 20STCV08924, Date: 2023-09-13 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: 20STCV08924    Hearing Date: September 13, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Pleadings

Plaintiff Pat La Torre sues Defendants Sowers Construction, Inc., Robert John Sowers, and Does 1 through 50 pursuant to a March 4, 2020 Complaint alleging claims of (1) Breach of Oral Contract, (2) Open Book Account, (3) Account Stated, (4) Goods and Services Rendered, and (5) Quantum Meruit.

The claims arise from allegations that Defendants Sowers Construction and Robert John Sowers failed to pay Plaintiff La Torre at least $669,310.61 per the terms of an oral contract between the parties pursuant to which La Torre would obtain construction work for the Defendants in exchange for a part of the net profits derived from the referrals.

Relevant Procedural Background

On May 12, 2022, the Court granted, in part, a motion for protective order by Plaintiff La Torre.

On June 1, 2022, the Court signed the protective order, which, among other things, set a “confidential” and “confidential—for attorneys’ eyes only” rule on all “Documents, Testimony or Information that are designated by a party or third party as Confidential Materials via designations that are defined and explained” in the order.

On April 27, 2023, Plaintiff La Torre served a deposition notice with requests for production on Defendant Sowers, with a deposition date of May 15, 2023. The requests involved production of unredacted copies of Sowers Construction’s general ledgers for 2015 to 2020, to be produced in PDF and Excel format.

On the same day, Defendant Sowers’s counsel communicated via email that Sowers was not available on May 15, 2023. Sowers’s counsel did not provide an alternative deposition date, instead representing that he would consult with his client regarding such a date.

On April 29, 2023, Plaintiff La Torre’s counsel sought new deposition dates from Defendant Sowers, indicating availability in early May 2023.

On May 5, 2023, Defendant Sowers served objections to the deposition notice and each document request.

On May 6, 2023 and May 10, 2023, due to no response from Defendant Sowers’s counsel, Plaintiff La Torre’s counsel followed up regarding deposition dates.

On May 10, 2023 and May 16, 2023, Defendant Sowers’s counsel again represented that he was attempting to reach Sowers regarding a deposition date.

On May 17, 2023, after Plaintiff La Torre’s counsel informed Defendant Sowers’s counsel that Plaintiff was going to move to compel a deposition and production, Sowers’s counsel finally offered the date of June 29, 2023, which was three or so days before the expert discovery cutoff. However, Sowers’s counsel indicated that Sowers would not produce any documents.

On May 18, 2023, Plaintiff La Torre applied ex parte to compel the deposition of and production from Defendant Sowers, which was denied by Department 32 on May 19, 2023.

On June 7, 2023, Plaintiff La Torre made the instant motion to compel deposition and production of documents and request for sanctions, which Defendant Sowers opposed on June 21, 2023.

On July 5, 2023, the Court granted Plaintiff La Torre’s motion compelling the deposition of and production from Defendant Sowers, noting that “a protective order [was] in place for documents to be produced under Confidential or Confidential--for Attorneys Eyes Only designations, signed by the Court on June 1, 2022.”

Between July 5, 2023 and August 7, 2023, counsel for the parties met and conferred via email regarding the setting of a deposition date and production pursuant to the Court’s July 5th order, to no avail.

On August 10, 2023, Plaintiff La Torre moved for an order compelling Defendant Sowers’s compliance with the July 5, 2023 order—i.e., compelling production within three days of any order as well as the deposition of Defendant Sowers on or before October 20, 2023—and requesting sanctions in the amount of $4,500.

On August 30, 2023, Defendant Sowers opposed Plaintiff La Torre’s August 10th motion.

On September 1, 2023, Defendant Sowers filed with the court of appeal a petition for writ of mandate, which sought relief from the Court’s July 5th order.

On September 6, 2023, the court of appeal denied the petition for writ of mandate made by Defendant Sowers.

That same day, Plaintiff La Torre replied to the August 30th opposition.

Later that day, Plaintiff La Torre supplemented his reply by attaching a copy of the court of appeal denial to a declaration from counsel.

Plaintiff La Torre’s August 10, 2023 motion is now before the Court.

Motion to Compel Compliance with Court Order

Legal Standard

If a party or party-affiliated deponent fails to obey an order compelling attendance, testimony, and production pursuant to a deposition notice, 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 (commencing with Section 2023.010) against that party deponent or against the party with whom the deponent is affiliated. In lieu of, or in addition to, this sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against that deponent or against the party with whom that party deponent is affiliated, and in favor of any party who, in person or by attorney, attended in the expectation that the deponent’s testimony would be taken pursuant to that order. (Code Civ. Proc., § 2025.450, subd. (h).)

Order Compelling Compliance With July 5, 2023 Order: GRANTED.

Plaintiff La Torre moved to compel a deposition of Defendant Sowers on or before October 20, 2023, as well as the production of the 2015 to 2020 unredacted ledgers, which were the subject of the Court’s July 5, 2023 order in Plaintiff’s favor. (Mot., pp. 6-7.)

Defendant Sowers opposed this motion on the grounds that Sowers’s petition for writ of mandate was pending with the court of appeal, that a further order relating to the deposition and production of documents could result in inconsistent rulings and further appeals, and that Defendants have ongoing concerns regarding the privacy of Defendants and third parties. (Opp’n, pp. 10-13.)

Plaintiff La Torre’s reply argued that Defendants failed to properly argue why the Court lacked jurisdiction to issue discovery orders, that the Court should wait until the writ is disposed of by the court of appeal before making its determination as to Plaintiff’s motion, and that if the writ was denied, Plaintiff’s motion should be granted. (Reply, pp. 2-4.)

Plaintiff La Torre’s supplemental reply attaches a copy of the court of appeal’s September 6, 2023 order denying the September 1, 2023 writ of mandate. (Supp. to Reply, Ex. A.)

The Court finds in favor of Plaintiff La Torre.

The court of appeal’s September 6, 2023 order disposed of any opposition arguments based on the pendency of the writ of mandate.

The remaining opposition argument—relating to concern for privacy interests—is unavailing for two reasons. First, the Court has already made a discovery order relating to Defendant Sowers’s deposition and the production of unredacted copies of the 2015 to 2020 ledgers. To the extent that this argument was previously made, it was considered and disposed of on July 5, 2023. Second, the Court’s July 5th order is clear that the requested production made be made subject to the protective order signed by the Court on June 1, 2022. Any opposition concerns that Plaintiff La Torre or his experts may see the financial ledgers or other information relating to Sowers Construction or third parties does not sway the Court otherwise. The protective order provides that “[a]ccess to and/or Disclosure of Confidential Materials designated as ‘Confidential’ shall be permitted … to … [i]ndividual persons who are Parties in this Proceeding” and “[o]utside experts or expert consultants consulted by the … Parties or their counsel in connection with the Proceeding, whether or not retained to testify at any trial,” and that “[a]ccess to and/or Disclosure of Confidential Materials designated as ‘Confidential – for Attorneys’ Eyes Only’ shall be permitted … to … [a]ttorneys of record … and any other person that the Designating Party agrees to in writing.” (6/1/22 Protective Order, pp. 6-8.) For Plaintiff La Torre or his counsel to share this information with persons beyond these provisions would violate a court order and could constitute grounds for making findings against Plaintiff. Any alleged risk of disclosure despite the existence of this Protective Order is outweighed by Plaintiff’s entitlement to these documents in order to prove his damages.

Accordingly, the Court GRANTS the motion to compel compliance with the Court’s July 5th order.

Order Granting Monetary Sanctions: DENIED.

Though the Court recognizes that Defendant Sowers filed his petition for writ of mandate after Plaintiff La Torre made the motion at issue and a mere 12 days before this hearing, the Court DENIES monetary sanctions because Defendant Sowers’s opposition and failure to comply with the Court’s July 5, 2023 order during the pendency of his petition for writ of mandate was justified. 

Conclusion

Plaintiff Pat La Torre’s Motion for (1) An Order Compelling Compliance with Court’s Discovery Order is GRANTED.

Plaintiff Pat La Torre and Defendant Robert John Sowers are ORDERED to meet and confer before oral argument regarding a mutually agreeable deposition date for Defendant Sowers, to take place on a date certain on or prior to October 20, 2023. If the parties cannot otherwise agree to a date this Court will set the deposition during oral argument on September 13, 2023 after hearing the proposals of the parties.

Defendant Robert John Sowers is further ORDERED to produce unredacted electronic copies of the 2015 to 2020 ledgers, in PDF and Excel format, with no changes to the original metadata, within three court days of this order, or no later than September 18, 2023.

Plaintiff Pat La Torre’s Motion for (2) Monetary Sanctions is DENIED.