Judge Curtis A. Kin, Case 21STCV01400 2022-12-13 Tentative Ruling

Judge: Curtis A. Kin, Case: 21STCV01400, Date: 2022-12-13 Tentative Ruling

Case Number: 21STCV01400 Hearing Date: December 13, 2022 Dept: 72

MOTION TO ENFORCE ORDER AND

REQUEST FOR SANCTIONS

Date: 12/13/22 (8:30 AM)

Case: Global Financial Partners, Inc. v. Brent Paysigner et al. (21STCV01400)

TENTATIVE RULING:

Plaintiff Global Financial Partners, Inc.’s Motion to Enforce Order and Request for Sanctions is GRANTED IN PART.

Plaintiff Global Financial Partners, Inc. moves for an order compelling defendants Craig Chisvin and Brent Paysinger to comply with the Court’s September 27, 2022 discovery order. Plaintiff also moves for an order imposing terminating and monetary sanctions against defendants.

On September 27, 2022, the Court ordered defendants to serve written verified responses, without objection, to their respective Form Interrogatories-General, Set One, Nos. 1.1, 2.1, 2.3, 2.5-2.12, 4.1, 4.2, 8.1-8.8, 9.1, 9.2, 10.1, 10.2, 12.1-12.4, 12.6, 14.1, 14.2, 15.1, and 17.1 propounded by plaintiff Global Financial Partners, Inc. within 15 days. (Evans Decl. ¶¶ 2, 3 & Ex. A.) The Court also ordered defendants to serve written verified responses, without objection, to all the requests in their respective Requests for Admission, Set One, within 15 days. (Id.)

Despite service of the notice of the September 27, 2022 ruling on defendants by mail and email (Evans Decl. ¶¶ 3, 4 & Ex. B), defendants have not served responses to the first sets of their respective Form Interrogatories-General, Set One or Requests for Admission.

The Court finds that terminating sanctions are not warranted at this time. Defendants have violated only one discovery order. Previous imposition of lesser sanctions is not absolutely required before imposing terminating sanctions (Scherrer v. Plaza Marina Coml. Corp. (1971) 16 Cal.App.3d 520, 524.) Nevertheless, “A decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.” (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-80.) Here, plaintiff has not shown a history of discovery abuse by defendants.

Moreover, with respect to the Requests for Admission, terminating sanctions are not available for failure to comply within an order compelling further responses to requests for admission. (Compare CCP § 2033.290(e) [remedy for failure to comply concerning requests for admission] with CCP § 2030.290(c) [“If a party then fails to obey an order compelling answers [to interrogatories], the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction….”].)

Accordingly, the Court declines to impose terminating sanctions.

With respect to the Form Interrogatories, to ensure that plaintiff receives the responses to which it is entitled, the Court orders defendants Craig Chisvin and Brent Paysinger to comply with the September 27, 2022 order by serving written verified responses, without objection, to their respective Form Interrogatories-General, Set One, Nos. 1.1, 2.1, 2.3, 2.5-2.12, 4.1, 4.2, 8.1-8.8, 9.1, 9.2, 10.1, 10.2, 12.1-12.4, 12.6, 14.1, 14.2, 15.1, and 17.1 propounded by plaintiff Global Financial Partners, Inc. within 15 days hereof. (See CCP § 2030.290(c) [allowing court to make orders that are just after party fails to comply with order compelling answers].)

With respect to the Requests for Admission, the governing statute does not allow the Court to compel compliance with a previous discovery order. (See CCP § 2033.290(e).) The governing statute prescribes a particular remedy—deeming matters involved in the requests admitted. Accordingly, the Court declines to order compliance with the September 27, 2022 order with respect to Requests for Admission, Set One. Insofar as plaintiff may seek the prescribed statutory remedy, the Court cannot do so, as plaintiff did not request that remedy and has provided no notice to defendant that he seeks such remedy.

Based on the limited success of this motion, the Court finds reduced monetary sanctions in the amount of $423.75 against defendant Craig Chisvin and $423.75 against defendant Brent Paysinger is appropriate. The monetary sanctions are based on 0.2 hours meeting and conferring with defendants; 1 hour of work preparing the motion (instead of the 4.8 hours claimed); and 0.3 hours attending the hearing (instead of the 3.5 hours claimed for reviewing the opposition, preparing a reply, and attending the hearing), all at an hourly rate of $525, plus $60 in filing fees. The monetary sanctions are split equally between both defendants.

Monetary sanctions shall be paid to plaintiff Global Financial Partners, Inc.’s counsel of record within 30 days hereof.

For the foregoing reasons, the motion is GRANTED IN PART.