Judge: H. Jay Ford, III, Case: 20SMCV01704, Date: 2023-12-07 Tentative Ruling
Case Number: 20SMCV01704 Hearing Date: December 7, 2023 Dept: O
The Court intends to adopt the following recommendations by the Referee
regarding Plaintiff’s requests for monetary sanctions in the Referee’s Report
and Recommendation #6:
“The Referee does not recommend that the Court award nonmonetary
sanctions against Vitela for misuse of discovery or failure to comply with the
Court’s order. The Referee recommends that the Court award monetary
sanctions against Vitela for Vitela’s extended failure to produce any text
messages responsive to Core’s Request for Production (RFP) Number 14, a problem
exacerbated by the deletion of text messages from Vitela’s cell
phone.... The Referee recommends that the Court hold Vitela responsible
for Referee fees in October, 2022 associated with the hearing of October 27,
2022 and the preparation of the October 31, 2022 Referee Directive. This would
comprise a total of 3.45 hours of Referee time. The Referee also
recommends that Vitela be held responsible for attorney fees incurred by Core
in addressing compliance with RFP 14 and the related issue of deletion of text
messages from Vitela’s cell phone, and recommends that the Court to have Core
counsel submit a declaration identifying in their invoices what portion of the
work was associated with addressing those issues. In light of the
Referee’s conclusion that several of the bases asserted by Core as grounds for
sanctions against Vitela do not justify sanctions by the Court, the Referee
recommends that the parties bear equal portions of the Referee’s fees
associated with preparation of this Report and Recommendations as well as the
previous Reports & Recommendations ##4 and 5 as noted below.”
Similarly, at minimum, the Court intends to adopt the Referee’s recommendations by the
Referee regarding Plaintiff’s requests for monetary sanctions in the Referee’s
Report and Recommendation #7:
“Vitela’s extended delay in responding to RFP 14 in the face of a Court
order compelling compliance, a circumstance exacerbated by Vitela’s failure to
promptly confirm and address the deletion of text messages from Vitela’s cell
phone, justifies the levying of appropriate monetary sanctions for misuse of
discovery since Vitela has been unable to provide substantial justification for
its actions. The Referee recommends that the Court hold Vitela responsible for
Core’s attorney fees incurred in addressing compliance with RFP 14 as well as
related Referee fees associated with the hearing of October 27, 2022 and the
preparation of the October 31, 2022 Referee Directive, as well as any other
costs the Court deems appropriate.”
Having reviewed the further declaration of
Alexander Karger in support of Plaintiff’s request for monetary sanctions
(filed 11-29-23) it is not clear what portion of the attorney’s fees were
incurred in connection with the initial sanctions motion that are attributed
solely to Vitela’s extended delay in responding to Core’s Request for
Production (RFP) Number 14 regarding text messages that were deleted from
Vitela’s phone. Plaintiff’s are to provide a supplemental brief
that: (1) identifies with reasonable particularity what portion, if any, of the
$213,122.5 incurred by SBK in connection with the “motion for sanctions”
(exhibit 1 to Karger decl.) is attributable to seeking to compel further
responses to RFP #14 and the production of text messages; (2) what portion, if
any, of the $375,238 incurred by Paul Hastings fees is attributable to seeking
to compel further responses to RFP #14 and the production of text
messages; (3) what portion of the fees incurred by Paul Hastings (if any) that
are directly related to the pursuit of the spoliation motion and the further
briefing and hearings before the Referee related to that motion; and, (4)
what portion of the fees relating to the “spoliation motion” were incurred
relating to third party subpoenas, depositions or other discovery that was
necessary as a direct consequence of the deletion of the text messages from
Vitela’s phone.
Plaintiff’s supplemental brief is to be filed on
______________________. Defendant’s may file a supplemental response (not
to exceed 5 pages) The Court continues the hearing on the parties
respective
objections to the Referee’s Report and
Recommendations Nos. 6 & 7 to _______________________________.