Judge Blaine K. Bowman, Case 37-2016-00041451-CU-PO-NC 2023-11-07 Tentative Ruling

Judge: Blaine K. Bowman, Case: 37-2016-00041451-CU-PO-NC, Date: 2023-11-07 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - November 06, 2023

11/09/2023 01:30:00 PM N-31 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Blaine K. Bowman

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Civil - Unlimited PI/PD/WD - Other Motion Hearing (Civil) 37-2016-00041451-CU-PO-NC JOHNSON VS. FIRE WATER SALOON [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Compel Discovery, 10/02/2023

The Motion to Compel Plaintiff's Deposition brought by defendant Ocean 6 RS LLC (dba Firewater Saloon) (the Saloon) is GRANTED. Plaintiff Robert Johnson III (Plaintiff) is ORDERED to sit for deposition at the court reporter's office located at 550 West C Street, Suite 700, San Diego, California 92101 by no later than November 22, 2023.

The Request for Monetary Sanctions brought by the Saloon is GRANTED in the amount of $3,678.10 pursuant to Code of Civil Procedure § 2025.450. Said sanctions shall paid by Plaintiff to Attorneys Robert Scherk and/or Matthew Voss of the law firm Murchison & Cumming LLP by no later than November 22, 2023.

The Request for an Order Imposing Terminating Sanctions brought by the Saloon is continued to Friday, December 8, 2023 at 10:00 a.m. in Department N-31. Five court days prior to said hearing, both parties are ORDERED to file and serve Status Reports regarding the status of the deposition – i.e.

whether it occurred, whether it was completed, whether full and complete sanctions were paid, whether it happened within the time frame ordered by the Court, and any other pertinent information.

This is an older case that was filed back in November of 2016. Though it has been up on appeal regarding an anti-SLAPP motion, which appears to account for some of the delay of prosecution, the case is notably beyond the customary timelines set by the Trial Court Delay Reduction Act. As such, this matter is currently set for trial on January 19, 2024.

The Saloon is a defendant in this case – it did not initiate this case. There is a single plaintiff in this case: Robert Johnson III. The facts provided indicate that the Saloon has noticed Plaintiff's deposition, but it has been delayed on several occasions. The chief reason for these delays that is given by Plaintiff is that he is still seeking legal counsel to represent him in this matter.

While the Court encourages all parties to seek legal counsel, the effort to find an attorney does not warrant indefinite delay of a case. The facts provided that Plaintiff has had ample time to perform a diligent search for counsel. The Court can only speculate as to the reasons for this: perhaps Plaintiff has not been diligent in searching, perhaps Plaintiff has been diligent in searching but no counsel is willing to take the case on its merits, or, perhaps Plaintiff has been diligent in searching and counsel would be willing to take the case but Plaintiff is unable to afford representation. Regardless of the reason, parties are not entitled to government appointed counsel in civil cases, as Plaintiff appears to be suggesting in his opposition brief. Given these parameters, the time has come for the case to proceed in earnest – with or without counsel representing Plaintiff.

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3039838 CASE NUMBER: CASE TITLE: JOHNSON VS. FIRE WATER SALOON [IMAGED] 37-2016-00041451-CU-PO-NC The Court is mindful in this case that the Saloon initially filed an anti-SLAPP motion that was granted (and affirmed on appeal) on a claim for malicious prosecution. That anti-SLAPP motion resulted in a separate request for attorney fees pursuant to Code of Civil Procedure § 452.16(c)(1). Those fees were granted in the amount of $26,027.00. (ROA 154.) That award was granted in December 2019, and the evidence demonstrates that an order for those sanctions was served on Plaintiff on December 10, 2019.

(ROA 270, Decl. of Scherk, ¶ 2.) According to the declaration of the Saloon's counsel, Plaintiff 'has failed to comply in any way – effectively ignoring the Court's Order dated and filed December 11, 2019.' (ROA 270, Decl. of Scherk, ¶ 2.) Moreover, the Court notes that the briefing filed by Plaintiff violates court rules (briefs must not be single-spaced, California Rules of Court, rule 2.108), contains numerous unfinished editorial markers (paragraphs beginning with 'PLACEHOLDER, Needs Edit:'), produces numerous pages that do not cite very little law and no evidence, and generally focuses on systemic questions regarding representation by counsel rather than on the substantive issue of resolving the discovery dispute. Plaintiff's primary argument appears to be a reliance on the seminal case of Gideon v. Wainwright (1963) 372 U.S. 335 in which the United States Supreme Court held that indigent defendants are entitled to counsel under the Sixth Amendment. While Gideon was a criminal case, Plaintiff refers to a 'civil Gideon,' apparently requesting that this Court appoint counsel for him. The Court declines to do so and sees no authority for that proposition.

In light of the above, including the fact that the anti-SLAPP attorney fees have gone unpaid (such that monetary 'sanctions' do not appear to be the kind of sanction that will incentivize compliance with a court-order) and that Plaintiff's failure to sit for deposition appears to be willful, and that this case is quite old with trial on the horizon (such that full and adequate discovery needs to take place in a very short time frame), the Court is reticent to apply the typical 'lesser sanctions first' approach (i.e. monetary sanctions first, then issue or evidentiary sanctions, then terminating sanctions) that generally applies to civil discovery. The Court concludes that in an exercise of cautious discretion, this is an appropriate scenario in which to move to harsher sanctions without trying lesser sanctions because lesser sanctions are highly unlikely to encourage compliance.

Nonetheless, while the Court views the instant scenario as one in which the harsher sanction of termination is appropriately within the Court's discretion, the Court nonetheless will provide Plaintiff with a final opportunity to comply with California law and sit for deposition. To that end, the Court today grants the motion with monetary sanctions (because the Saloon has incurred expenses to even bring the motion) and orders that the deposition take place in a relatively short time frame (by November 22, 2023) so as not to delay the current trial date of January 19, 2024. However, as the Saloon has also requested terminating sanctions, and as the record and evidence indicate that Plaintiff's failure to sit for deposition has been willful, in the event that Plaintiff fails to comply with this Court's order to sit for deposition and pay monetary sanctions, this Court continues the alternative portion of the motion to be heard on December 8, 2023. As a caution to Plaintiff: failure to sit for deposition and/or to pay the full amount of the monetary sanction of $3,678.10 may result in the Saloon's request for the harsher sanction of terminating sanctions being granted at the December 8, 2023 hearing.

However, in continuing the matter to additionally consider the issue of terminating sanctions, the Court notes that the Saloon made the request for sanctions in the alternative. Thus, while the Court presently grants the motion to compel the deposition and to award monetary sanctions, if Plaintiff fails to comply with either of those aspects of the order, such that the harsher sanction of termination of the case is warranted, the Court would be inclined to reconsider the issuance of the award of monetary sanctions because the harsher sanction will be applied to Plaintiff.

To be clear, the proverbial 'ball' is in Plaintiff's court. If he wishes to proceed with his case, he must sit for deposition forthwith and pay monetary sanctions as ordered. If he does not wish to proceed, he may dismiss his case voluntarily, or the sanction of termination may be imposed against him for failing to comply with Court orders to participate in discovery.

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3039838 CASE NUMBER: CASE TITLE: JOHNSON VS. FIRE WATER SALOON [IMAGED] 37-2016-00041451-CU-PO-NC Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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