Judge: Frank M. Tavelman, Case: 20BBCV00813, Date: 2023-09-01 Tentative Ruling

SUBMITTING ON THE TENTATIVE
Generally, the Court will post tentative rulings prior to a hearing; however, the Court does not always do so.  If the parties wish to avoid a court appearance and submit on the tentative ruling, then all counsel must confer and agree to do so.   Each counsel must then contact the Court and advise they have spoken to opposing counsel and will submit on the tentative.  All counsel seeking to submit on a tentative must call Dept A no later than 8:45 a.m. on the hearing day or in lieu may indicate the party is submitting during calendar check-in. Notice of the ruling must be served as indicated in the tentative. If any party declines to submit on the tentative ruling, then all parties should appear at the hearing in person or remotely.
 

Case Number: 20BBCV00813    Hearing Date: October 6, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION FOR EVIDENTIARY SANCTIONS

The Court is not requesting oral argument on this matter.  Pursuant to California Rules of Court, Rule 3.1308(a)(1) notice of intent to appear is required.  Unless the Court directs argument in the Tentative Ruling, no argument will be permitted unless a “party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  “The tentative ruling will become the ruling of the court if no notice of intent to appear is received.”  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412

ALLEGATIONS: 

Susanna Yagubyan (“Plaintiff”), Central Medical Business Management, Inc., and Deepest Inner Core, Inc. brings this suit against West Coast Urgent Care Clinics, Inc. (“Defendant”), Sona Sirounian, Brigeli Westerband, and Vahe Gyulnazaryan.

Defendant now moves for evidentiary sanctions on grounds that Plaintiff has consistently abused the discovery process. Plaintiff submits no opposition. Defendant has filed two supplemental declarations at the request of the Court so that it may make an informed decision.

ANALYSIS: 

I.                    LEGAL STANDARD 

If a party fails to comply with a court order compelling a response to interrogatories or a request for production, the court may impose monetary, issue, evidence, or terminating sanctions. (C.C.P. §§ 2030.290(c), 2031.300 (c).)

C.C.P. § 2023.030 provides “[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…”

C.C.P. § 2023.30(c) provides that the court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.

C.C.P. § 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…”

II.                 MERITS

Defendant asks that evidentiary sanctions be granted against Plaintiff to preclude her from introducing text messages and emails mentioned at her deposition into evidence. Defendant also asks sanctions to be granted to preclude Plaintiff from testifying at trial entirely. To determine the appropriateness of these requests, the Court must briefly review the timeline of the discovery in question.

Timeline

On July 13, 2023, Defendant conducted the first day of Plaintiff’s deposition. Defendant’s former counsel, Laine Mervis, conducted the deposition and now submits a declaration in support of this motion. (Mervis Decl. ¶ 10.) Mervis has since moved to another firm and no longer represents Defendant. During the deposition, Plaintiff indicated she possessed an abundance of text messages and emails regarding this matter and that they had been turned over to her attorney. (Mervis Decl. ¶ 4 & Eanet Decl. ¶ 4, Exh. 2.) Mervis states that at no time during the deposition did Plaintiff’s counsel refute that any of these documents were in his possession. (Mervis Decl. ¶ 11.) At the end of the deposition Mervis confirmed that he wished to conduct a second deposition session and that he would work with Plaintiff’s counsel to obtain the text messages and emails. (Mervis Decl. ¶ 11.) Plaintiff’s counsel confirmed this understanding was correct. (Id.) 

On July 25, 2023, Defendant’s counsel sent a letter to Plaintiff’s counsel requesting production of the outstanding documents identified at deposition that had yet to be produced. (Eanet Decl. ¶ 5, Exh. 3.) On July 31, 2023, Defendant sent further correspondence to Plaintiff counsel asking for production after the first request received no response. (Eanet Decl. ¶ 7, Exh. 5.) Defendant’s counsel engaged in several attempts to meet and confer regarding production on August 10 and 15. (Eanet Decl. ¶¶ 8-10.) Defendant received no response to these efforts. (Id.)

On August 10, 2023, the Court granted Defendant’s motion to continue the trial date and advised that the second deposition of Plaintiff must take place on or before August 28, 2023. (Eanet Decl. ¶ 9.) That same day, Defendant’s counsel sent another meet and confer correspondence which received no response. (Eanet Decl. ¶ 8.) On August 15, 2023, Defendant’s counsel texted and called Plaintiff’s counsel regarding the matter with no response to either. (Eanet Decl. ¶ 11.)

On August 23, 2023 Plaintiff’s counsel produced text messages, however these messages were in a non-native format and the sender/recipient could not be identified for any of them. (Eanet Decl. ¶ 12.) Additionally, no emails were produced. (Id.)

On August 24, 2023, Defendant’s counsel again requested full production of the text messages and emails. (Eanet Decl. ¶ 14.) The same occurred on September 6, 2023 and September 11, 2023, with no response from Plaintiff’s counsel. (Eanet Decl. ¶¶ 14-15.) On September 13, 2023, Plaintiff’s counsel responded to the messages by stating the following:

[a]s far as the ‘emails’ no emails have been turned over and I am certain that was a misstatement by her, texts messages have been turned over and those have been provided to you.

(Eanet Decl. Exh. 10.)

On September 21, 2023, Defendant’s counsel contacted Plaintiff’s counsel to explain the issues with the text message formatting. (Eanet Decl. ¶ 17.) Defendant’s counsel asked that the messages be produced in their native format by September 15, 2023. (Eanet Decl. ¶ 18, Exh. 11.) Plaintiff’s counsel had not responded to this request as of the filing of this motion. (Eanet Decl. ¶ 19.)

Analysis

As a preliminary matter, the Court finds no basis has been provided with respect to the total exclusion of Plaintiff’s testimony at trial. The statute providing for evidentiary sanctions only provides that a party abusing the discovery process cannot enter the designated matters into evidence. The Court finds Plaintiff’s testimony at trial will likely encompass more than the designated matters. Further, Plaintiff has not refused deposition on the matter and is willing to be further deposed. As such, the Court sees no basis for excluding the entirety of her testimony at trial. However, it follows that evidentiary sanctions prohibiting Plaintiff from testifying about the text messages and emails at trial may still be valid.

Defendant cites Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, which held that a consistent pattern of discovery abuse can support the granting of evidentiary sanctions. The Karlsson court also considered that lesser sanctions would have been futile given Ford no longer had the legal capability to correct these abuses. (Id. at 276.)  Defendant argues that Plaintiff’s counsel has engaged in a pattern of discovery abuse sufficient to justify evidentiary sanctions.

“Discovery sanctions must be tailored in order to remedy the offending party's discovery abuse, should not give the aggrieved party more than what it is entitled to, and should not be used to punish the offending party.” (Karlsson supra, 140 Cal.App.4th at 1217.) “Although the court has discretion in choosing a sanction, this discretion must be exercised in a manner consistent with the basic purposes of such sanctions, e.g., to compel disclosure of discoverable information.” (Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1193 [citation omitted].) “Furthermore, the sanction chosen should not provide a windfall to the other party, by putting the prevailing party in a better position than if he or she had obtained the discovery sought and it had been favorable.” (Id. [citations omitted].)

Here, the Court does not find that evidentiary sanctions would comport with the purpose of compelling production. The Court is cognizant of the fact that Plaintiff’s counsel was unresponsive to Defendant’s request for the information needed to conduct a second deposition. The Court does not look kindly upon these delays and has admonished Plaintiff’s counsel accordingly. However, the fact remains that Plaintiff’s counsel did eventually produce the text messages. While these messages are not currently usable, nothing suggests Plaintiff’s counsel altered them to be as such. The evidence in front of the Court suggests that Plaintiff’s counsel merely turned over what he had. The Court is confident Plaintiff’s counsel will correct the formatting of the messages so that they are properly responsive to Defendant’s request. Accordingly, the motion for evidentiary sanctions is DENIED in part without prejudice, as to precluding evidence of the text messages. Should Plaintiff’s counsel persist in not providing usable text message conversations the Court would entertain a further motion by Defendant for evidentiary sanctions.   Plaintiff shall have 10 calendar days to provide text messages in a readable and usable format.

As concerns the emails Plaintiff mentioned in her deposition, Plaintiff’s counsel has repeatedly refused to produce. It appears Plaintiff’s current stance is that no such emails ever existed and that his client misspoke at her deposition. If this is the case, the Court sees no way in which a lesser sanction would result in production of the emails. Accordingly, the motion for evidentiary sanctions is GRANTED in part as to the introduction of emails mentioned by Plaintiff in her deposition.

--- 

RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

West Coast Urgent Care Clinics, Inc.’s Motion for Evidentiary Sanctions came on regularly for hearing on October 6, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION IS GRANTED IN PART - PLAINTIFF IS PRECLUDED FROM INTRODUCING EVIDENCE OF ANY EMAILS MENTIONED IN HER DEPOSITION.

THE MOTION IS DENIED AS TO TEXT MESSAGES.   PLAINTIFF IS TO PROVIDE TEXT MESSAGES IN A READABLE AND USABLE FORMAT WITHIN 10 CALENDAR DAYS.

THE MOTION IS DENIED AS TO EXCLUDING PLAINTIFF’S TESTIMONY.

THE COURT SETS AN INFORMAL DISCOVERY CONFERENCE REGARDING COMPLIANCE ON OCTOBER 17, 2023 AT 4:00 P.M.   IF COMPLIANCE IS ACHIEVED THE DEFENDANT MAY NOTIFY THE COURT TO VACATE THE IDC.

ALL EXISTING DATES REMAIN.

UNLESS ALL PARTIES WAIVE NOTICE, DEFENDANT IS TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  October 6, 2023                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles