Judge: Armen Tamzarian, Case: BC682157, Date: 2023-02-24 Tentative Ruling
Case Number: BC682157 Hearing Date: February 24, 2023 Dept: 52
Defendant/cross-complainant Starr Indemnity and Liability
Company (Starr) moves for terminating and monetary sanctions against plaintiffs/cross-defendants
Zoriall LLC, Anne Kihagi, and Christina Mwangi.
The court held
hearings on this motion on December 12, 2022, and January 27, 2023. The court found plaintiffs disobeyed three
court orders compelling discovery. (Dec.
12, 2022 minute order, pp. 1-2.) Twice,
the court continued this matter to give plaintiffs another chance to comply
with the court’s orders.
On January 27,
the court stated it “will give
plaintiffs one final chance to fully and in good faith comply with the court’s
discovery orders.” (Jan. 27, 2023 minute
order, p. 2.) The court made three
specific orders compelling discovery:
(1) “No later than February 10, 2023, each plaintiff shall
serve verified responses without objections to Starr’s supplemental requests
for production. They shall concurrently produce all responsive documents. Each
plaintiff’s verified responses shall comply with the requirements of Code of
Civil Procedure sections 2031.220 and 2031.230.”
(2) “No later than February 10, 2023, each plaintiff shall
serve verified written responses without objections to the 42 categories of
documents requested in the notices of their depositions. If plaintiffs are
unable to produce any responsive documents for a given category, the response
must state so using the exact language required for a representation of
inability to comply with a demand for inspection under Code of Civil Procedure
section 2031.230. Otherwise, plaintiffs’ responses must state they will produce
all documents in the demanded category that are in their possession, custody,
or control as required for a statement of compliance under Code of Civil
Procedure section 2031.220.”
(3) “Plaintiffs shall produce all responsive documents
concurrently with their written responses. The documents shall be identified
with the specific request number to which they respond. If plaintiffs have
already produced any documents responsive to these requests, they must identify
those documents with specificity (e.g., by Bates stamp numbers).”
The court also required plaintiffs
to demonstrate they complied with the first three orders. “Plaintiffs must file with the court a sworn
declaration attaching copies of their written responses (but not the documents
produced) no later than February 10, 2023.”
(Jan. 27, 2023 minute order, p. 3.)
Plaintiffs disobeyed all of these
orders by failing to do the things required prior to the February 10, 2023,
deadline. Since February 10, plaintiffs
only partially complied with the first order compelling discovery. On February 14, they belatedly served “verified supplemental responses to special interrogatories, set two”
(Uchiyama Decl., ¶ 11) and “verified supplemental responses to supplemental
special interrogatories and supplemental form interrogatories.” (¶ 12.)
Plaintiffs did
not even partially comply with the second order. They produced some documents, but they
skipped the initial step—which the court ordered—of serving written responses
to the 42 document requests in the manner of responses to requests for
production under Code of Civil Procedure sections 2031.220 and 2031.230. The point of this procedure is to require the
responding parties to state under oath
not only that they will produce specified documents, but also that they are not
withholding any responsive documents in their possession, custody, or control.
Plaintiffs did not do that.
Starr’s counsel states plaintiffs did not serve “any verified written
responses to any of the 42 categories of documents requested in Starr’s notices
of their depositions. To date, the
Kihagi Parties have not served verified responses nor produced all responsive
documents nor complied with the Code of Civil Procedure to Starr’s 42
categories of document requests in Starr’s notices of depositions.” (Mandegary Decl. dated Feb. 17, 2023, ¶ 8.) Though they produced some documents (Uchiyama
Decl., ¶¶ 13-14), that is not adequate because they never stated the documents
they would produce include all responsive documents in their possession,
custody, or control. Without that
statement, plaintiffs can selectively produce some documents while withholding
other responsive documents.
Plaintiffs also
did not comply with the third order requiring them to “produce all responsive
documents … identified with the specific request number to which they
respond.” Instead, plaintiffs’ counsel produced
“bate-stamped documents that either supplemented Plaintiffs’ prior responses or
were duplicates of Plaintiffs’ prior production.” (Uchiyama Decl., ¶ 13.) On February 17, she “produced more documents.”
(¶ 14.)
The documents, however, “were not identified as being responsive to any
of Starr’s specific document request numbers.”
(Mandegary Decl. dated Feb. 17, ¶ 12.)
Moreover, as
discussed above with respect to the second order, plaintiffs made no sworn
statement that they produced all responsive documents. Plaintiffs’ counsel states she “shared with
STARR’s attorneys a new Dropbox with bate-stamped documents that either
supplemented Plaintiffs’ prior responses or were duplicates of Plaintiffs’
prior document production, so STARR could not complain it never received them.” (Uchiyama Decl., ¶ 13.) Plaintiffs thus state they produced some
documents—not all responsive documents.
Regarding the second batch of documents on February 17, plaintiffs’
counsel states she “produced more documents to
Defendant Starr,” and she “believed these supplemental documents are relevant
to showing the environment in San Francisco that set the stage for the
settlement discussions between STARR, the Duncan attorneys and Plaintiffs’
defense counsel before, during and after the Duncan trial in 2017.” (Uchiyama Decl., ¶ 14.) She does not state these documents were
responsive to any of the discovery requests defendants made and the court
ordered. Instead, Uchiyama produced
documents that she thinks support plaintiffs’ case. The purpose of this discovery was for Starr
to discover all responsive documents—including those harmful to plaintiffs’
case—so it could evaluate the strength of plaintiffs’ case for itself and
prepare for a trial against them.
Selectively producing documents favorable to plaintiffs falls far short
of complying with Starr’s discovery requests and the court’s orders compelling
that discovery.
Plaintiffs also
did not comply with the court’s fourth order, which required them to
demonstrate, by February 10, that they complied with the prior orders. They filed no declaration by February
10. They only filed a declaration on
February 21. That declaration does not
attach the written discovery responses as required. It instead shows the correspondence between
counsel and in which plaintiffs’ counsel sent the responses to Starr.
Plaintiffs’
counsel’s untimely brief also seeks to distract from the matter at hand—whether
they complied with the court’s discovery orders. Instead, plaintiffs minimize the importance
of the discovery the court ordered. For
example, they assert “only a few items were actually outstanding on January 27,
2023.” (Plaintiffs’ Report, p. 2.) Plaintiffs also argue over their disputes
with Starr about it producing witnesses at trial and its responses to
plaintiffs’ discovery. (Id., pp.
5-6.) This motion concerns whether
plaintiffs complied with their obligations until the Civil Discovery Act and
the court’s orders. Production of
witnesses at trial and Starr’s responses to plaintiffs’ discovery are irrelevant.
Plaintiffs’
complete failure to comply with the February 10 court-ordered deadline and belated
and minimal compliance with their obligations and the court’s orders after
February 10 is too little, too late. The
court first ordered plaintiffs to comply with these discovery requests on May
4, 2022. The court gave plaintiffs extra
chances to comply with the court’s orders.
They have repeatedly disobeyed the substantive provisions of those
orders. They have also failed to pay
monetary sanctions. In sum, plaintiffs
have engaged in a pattern and practice of violating the provisions of the Civil
Discovery Act and disobeying the court’s discovery orders that has undermined
Starr’s ability to prepare for trial.
There is no
reason to believe plaintiffs will stop engaging in this misconduct. Moreover, this action has been pending since
2017, and trial is set for April 5, less than six weeks from now. The record clearly shows that sanctions short
of termination will be ineffective. The
court therefore exercises its discretion to grant terminating sanctions against
plaintiffs on their first amended complaint and against plaintiffs/cross-defendants
on Starr’s first amended cross-complaint.
The court exercises its discretion not to impose further monetary
sanctions against plaintiffs/cross-defendants.
Disposition
Defendant/cross-complainant Starr Indemnity and Liability
Company’s motion for terminating sanctions against plaintiffs/cross-defendants
Zoriall LLC, Anne Kihagi, and Christina Mwangi is granted.
Under Code of
Civil Procedure section 2023.030, subdivision (d)(3), the court hereby dismisses
plaintiffs Zoriall LLC, Anne Kihagi, and Christina Mwangi’s first amended
complaint with prejudice.
Under Code of
Civil Procedure section 2023.030, subdivision (d)(1), the court hereby strikes
plaintiffs/cross-defendants’ answer to Starr Indemnity and Liability Company’s
first amended cross-complaint. The court
hereby enters the defaults of cross-defendants Zoriall LLC, Anne Kihagi,
and Christina Mwangi as to Starr Indemnity and Liability Company’s first
amended cross-complaint.
Rather than
“rendering a judgment by default against” cross-defendants under Code of Civil
Procedure section 2023.030, subdivision (d)(4), the court will require
cross-complainant Starr Indemnity and Liability Company to apply for default
judgment. Starr must comply with California
Rules of Court, rule 3.1800. Starr must
also “prove up [its] damages, with actual evidence.” (Kim v.
Westmoore Partners, Inc. (2011) 201 Cal. App. 4th 267, 272.) The court hereby permits Starr to present
evidence by affidavit instead of live testimony. (Code Civ. Proc.,
§ 585, subd. (d).)
The remaining
motions on calendar are moot. The
court hereby vacates the hearings on plaintiffs’ former counsel, Tesser
Grossman LLP’s three motions to be relieved as counsel and the hearing on
defendant/cross-complainant Starr Indemnity and Liability Company’s motion to
sever trial.
The court hereby
sets an order to show cause re: entry of judgment for March 20, 2023, at 8:30
a.m.