Judge: Elaine Lu, Case: 19STCV15991, Date: 2023-01-17 Tentative Ruling

Case Number: 19STCV15991    Hearing Date: January 17, 2023    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Background

On May 8, 2019, Plaintiff Meridian Pacific Holdings, LLC (“MPH”) filed the instant action arising out of approximately $1.6 million in advances made pursuant to three business financing agreements.  On April 1, 2021, Plaintiffs MPH and Meridian Financial Group, LLC (“MPG”) (jointly “Plaintiffs”) filed the operative Third Amended Complaint (“TAC”) against defendants Ameritek Ventures, Inc. (“Ameritek”); Lion Den, LLC (“Lion”); PPB Engineering & Systems Design, Inc. (“PPB”); Michael Stokes (“MStokes”); Constantina Frial (“Frial”); Kenneth Mayeaux (“KM”); Jamie Mayeaux (“JM”); and Clinton Stokes (“CStokes”). 

The TAC asserts eleven causes of action for (1) Breach of Contract against PPB, CStokes, MStokes, JM, and KM; (2) Breach of Contract against Ameritek, CStokes, MStokes, KM, and JM; (3) Breach of Contract against Lion, Frial, and MStokes; (4) Money Had and Received against all defendants; (5) Unjust Enrichment against all defendants; (6) Promissory Fraud against PPB, CStokes, MStokes, JM, and KM; (7) Promissory Fraud against Ameritek, CStokes, MStokes, KM, and JM; (8) Promissory Fraud against Lion, Frial, and MStokes, (9) Fraud against PPB, CStokes, MStokes, JM, and KM; (10) Fraud against Ameritek, CStokes, MStokes, KM, and JM; and (11) Fraud against Lion, Frial, and MStokes.

            On June 7, 2022, Plaintiffs filed the instant motion for terminating sanctions against Defendant Frial.  No opposition or reply has been filed.

Request for Judicial Notice

Plaintiffs request that the court take judicial notice of:

A.    The Court’s Order on December 15, 2021

B.     Notice of the Court’s December 15, 2021 Order

As the Court may take judicial notice of court records and actions of any state, (See Evid. Code, § 452(c)(d)), Plaintiffs’ unopposed request for judicial notice is GRANTED.  However, the Court will not take judicial notice of the truth of assertions within the court records. (See Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.)

Legal Standard

Code of Civil Procedure section 2023.030 provides that, “[t]o the extent authorized by the chapter governing any particular discovery method . . . , the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose . . . [monetary, issue, evidence, or terminating] sanctions against anyone engaging in conduct that is a misuse of the discovery process . . . .”  Code of Civil Procedure section 2023.010 provides that “[m]issues of the discovery process include, but are not limited to, the following: . . . (d) Failing to respond or to submit to an authorized method of discovery. . . . (g) Disobeying a court order to provide discovery . . . .”

“The trial court may order a terminating sanction for discovery abuse ‘after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.’”  (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390 [quoting Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246].)  “Generally, ‘[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.’”  (Los Defensores, supra, 223 Cal.App.4th at p. 390 [citation omitted].)

“Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders.”  (Ibid. [citing Lang, supra, 77 Cal.App.4th at pp. 1244-1246); see, e.g., Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617-1622 (terminating sanctions imposed after defendants failed to comply with one court order to produce discovery); Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 491 disapproved on other grounds in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, fn.4, [terminating sanctions imposed against the plaintiff for failing to comply with a discovery order and for violating various discovery statutes].)

However, “a penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.”  (Brown v. Superior Court (1986) 180 Cal.App.3d 701, 707.) 

Pursuant to Code of Civil Procedure section 2023.030(d):

The court may impose a terminating sanction by one of the following orders:

(1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.

(2) An order staying further proceedings by that party until an order for discovery is obeyed.

(3) An order dismissing the action, or any part of the action, of that party.

(4) An order rendering a judgment by default against that party.

Discussion

            Plaintiffs seek terminating and monetary sanctions against Defendant Frial for failing to comply with the Court’s December 15, 2021 Order.

Terminating Sanctions

            On February 11, 2020, Plaintiffs’ Counsel served Plaintiff MPH’s Special Interrogatories, Set One and Form Interrogatories- General, Set One on Defendant Frial.  (Miller Decl. ¶ 2.)  Defendant Frial failed to timely respond to these requests.  (Miller Decl. ¶¶ 3-5.)       

            On September 24, 2021, Plaintiffs served Defendant Frial with Special Interrogatories, Set Two and Request for Production of Documents, Set Two.  (Miller Decl. ¶ 6.)  However, Defendant Frial failed to timely respond to these requests.  (Miller Decl. ¶ 7.)

            On November 12, 2021, Plaintiffs filed three motions after Defendant Frial failed to respond to Plaintiff’s discovery.  Specifically, (1) MPH filed a motion to compel responses to Form Interrogatories, Set One, Special Interrogatories, Set One, and Request for Production of Documents, Set One (collectively “Discovery Requests 1”); (2) Plaintiffs filed a motion to compel responses to Special Interrogatories, Set Two, and Request for Production of Documents, Set Two (jointly “Discovery Requests 2”); and (3) Plaintiffs filed a motion to deem Requests for Admissions admitted (“RFAs”).  On November 15, 2021, the Court advanced these discovery motions to be heard on December 15, 2021 and mailed notice of the continuance to Defendant Frial.  (Minute Order 11/15/21.)  Frial did not oppose these motions.  (Miller Decl. ¶ 11.)

            On December 15, 2021, the Court granted these motions and ordered Defendant Frial ordered to serve verified responses to MPH’s Form Interrogatories, Set One; Special Interrogatories, Set One; Request for Production of Documents, Set One; and Plaintiffs’ Special Interrogatories, Set Two, and Request for Production of Documents, Set Two without objections, within thirty (30) days of notice of this order and pay monetary sanctions of $1,850.00.  (Order 12/15/21; RJN Exh. 1.)  On January 10, 2022, Plaintiffs gave notice of the Court’s December 15, 2021 Order and filed proof of service of such.  (Miller Decl. ¶ 12, Exh. 1; RJN Exh. 2.) 

            Despite being provided with notice of the December 15, 2021 Order, Defendant Frial has failed to comply with the Court’s December 15, 2021 Order and has failed to respond to the discovery requests or pay the monetary sanctions.

            As to the failure to pay monetary sanctions, the Court notes that “terminating sanction issued solely because of a failure to pay a monetary discovery sanction is never justified.”  (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.)  As noted by the Court of Appeal in Newland, “many attorneys seem to be unaware that monetary sanction orders are enforceable through the execution of judgment laws.”  (Ibid.)  Monetary sanctions “have the force and effect of a money judgment, and are immediately enforceable through execution, except to the extent the trial court may order a stay of the sanction.”  (Ibid.)  Thus, Plaintiffs can enforce the monetary sanctions from the December 15, 2021 order as a judgment.

            However, for more than a year, Defendant Frial has not complied with not only the order to pay monetary sanctions but also the order to serve discovery responses.  Accordingly, the Court finds Defendant Frial has engaged in conduct that is a misuse of discovery by disobeying the Court’s order to serve verified responses, without objections, to discovery requests.  Defendant Frial was served with notice of the Court’s order to serve verified responses as well as the instant motion.  Yet, Defendant Frial has failed to file any opposition to the instant motion, leading this court to conclude that Defendant Frial has no meritorious arguments.  (Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 487; Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 796-797.)  

Based on the record before the Court, the Court finds Defendant Frial had knowledge of Defendant Frial’s discovery obligations and the Court order compelling Defendant Frial’s compliance.  Defendant Frial has failed to file an opposition demonstrating that Defendant Frial’s noncompliance was not willful.  The Court notes that Defendant Frial has been completely non-responsive, thereby thwarting Plaintiffs’ ability to prepare for trial.  Although terminating sanctions are a harsh penalty, Plaintiffs have demonstrated that Defendant Frial’s compliance with the Court’s orders cannot be achieved through lesser sanctions.

Plaintiffs are thus entitled to a court order imposing terminating sanctions against Defendant Frial.

Monetary Sanctions

In addition to terminating sanctions, Plaintiffs seek monetary sanctions.  Specifically, Plaintiffs seek a total of $2,060.00 to compensate Plaintiffs’ Counsel for four hours in drafting the instant motion, an anticipated two hours in drafting a reply, and an anticipated two hours in attending the hearing at $250 per hour plus filing fees of $60.  (Miller Decl. ¶ 14.)

Here, the Court finds that an order for additional monetary sanctions would be futile as Defendant Frial has not complied with any court order, and, in any event, a terminating sanction is sufficient.  Therefore the Court declines to award further monetary sanctions.

CONCLUSIONS AND ORDER

            Based on the foregoing, Plaintiffs Meridian Pacific Holdings, LLC and Meridian Financial Group, LLC motion for terminating sanctions against Defendant Constantina Frial is GRANTED.

            Defendant Constantina Frial’s answer to the Third Amended Complaint filed September 23, 2021 is stricken, and default is entered against Defendant Constantina Frial.

            Plaintiffs request for monetary sanctions is DENIED.

            Plaintiffs are to give notice of this order to all parties who have appeared and file proof of service of such within 10 days.

            The Court’s Judicial Assistant shall also give notice to Defendant Constantina Frial.

DATED: January 17, 2023                                                     ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court