Judge Holly J. Fujie, Case 19STCV45806 2023-02-16 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

RESPONDING PARTIES: Defendants Christopher J. Adams (“Adams”) and Nicolo James Rusconi (“Rusconi”) (collectively, Defendants”)

The currently operative first amended complaint (the “FAC”) alleges: (1) breach of promissory note; (2) breach of oral contract; and (3) conversion.

Plaintiff filed: (1) a motion for sanctions against Rusconi (the “Rusconi Motion”); and (2) a motion for sanctions against Adams (the “Adams Motion”) (collectively, the “Motions”).[1] The Motions seek terminating, or alternatively, issue and monetary sanctions to be issued against Defendants and their counsel for their misuse of the discovery process and failure to comply with Court orders.

Under California Code of Civil Procedure (“CCP”) section 2023.030, where a party engages in misuse of discovery process, the court may impose monetary, issue, evidence, terminating, or contempt sanctions. (See CCP § 2023.030.) Misuses of the discovery process include failing to respond or to submit to an authorized method of discovery and disobeying a court order to provide discovery. (See CCP § 2023.010, subds. (d), (g).)

The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) Discovery sanctions should be appropriate to the dereliction and should not exceed that which is required to protect the interests of the party entitled to but denied discovery. (Id.) Continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse. (Id.) Where discovery violations are willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with discovery rules, the trial court is justified in imposing the ultimate sanction. (Id.) A trial court has broad discretion to impose discovery sanctions, but absent unusual circumstances, the court must generally find: (1) a failure to comply with a court order; and (2) the failure was willful. (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.)

The court should consider the totality of the circumstances, including conduct of the party to determine if the actions were willful, the determent to the propounding party, and the number of formal and informal attempts to obtain discovery. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) If a lesser sanction fails to curb abuse, a greater sanction is warranted. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) However, the unsuccessful imposition of a lesser sanction is not an absolute prerequisite to the utilization of the ultimate sanction. (Deyo v. Killbourne (1978) 84 Cal.App.3d 771, 787.) When considering whether to impose terminating sanctions, courts should consider the following factors: (1) the time which has elapsed since the discovery requests were served; (2) whether the party served was previously given a voluntary extension of time; (3) the number of interrogatories propounded; (4) whether the unanswered questions sought information which was difficult to obtain; (5) whether the answers supplied were evasive and incomplete; (6) the number of questions which remain unanswered; (7) whether the questions which remain unanswered are material to a particular claim or defense; (8) whether the answering party has acted in good faith, and with reasonable diligence; (9) the existence of prior orders compelling discovery and the answering party's response thereto; (10) whether the party was unable to comply with the previous order of the court; (11) whether an order allowing more time to answer would enable the answering party to supply the necessary information, and; (12) whether a sanction short of dismissal or default would be appropriate to the dereliction. (Id. at 796-97.)

Terminating sanctions should not be ordered lightly, but are justified where a violation is willful, preceded by a history of abuse, and there is evidence that less severe sanctions would not produce compliance with the discovery rules. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.)

Plaintiff seeks sanctions due to Defendants’ failure to provide code-compliant responses to its Special Interrogatories, Set One (the “SPROGs”) and Requests for Production, Set One (the “RFPs”), which were originally propounded in March 2021. (See Rusconi Mot. Declaration of Joshua R. Ashbaugh (“Ashbaugh Decl.”) ¶ ¶ 2-3.) Following an Informal Discovery Conference (“IDC”) held on January 6, 2022, the Court issued an order directing Defendants to produce further responses within 30 days. On March 21, 2022, Plaintiff filed four motions to compel further responses to the SPROGS and RFPs, which the Court granted on June 22, 2022. The Court’s June 22, 2022 order required Defendants to serve further responses by July 12, 2022.

Plaintiff takes the position that Defendants’ responses, which were served in July 2022, remain deficient because they lack an indication that Defendants conducted a reasonable, diligent investigation to obtain responsive information and documents for requests to which they were unable to be fully responsive. (See Rusconi Mot. Ashbaugh Decl. ¶¶ 48-49, Exhibits 17-18; Adams Mot. Ashbaugh Decl. ¶ 34, Exhibits 11-12.) Plaintiff additionally contends that Defendants’ RFP responses remain deficient because they produced very few documents (Rusconi produced three documents and Adams produced one document.) (Rusconi Mot. Ashbaugh Decl. ¶ 49; Adams Mot. Ashbaugh Decl. ¶ 35.) Plaintiff’s attorney called Defendants’ attorney on January 9, 2023 and January 10, 2023 to discuss the sufficiency of their responses, and when counsel spoke on January 13, 2023, they were unable to come to a resolution. (Adams Mot. Ashbaugh Decl. ¶ 37.)

Defendants’ oppositions (collectively, the “Oppositions”) argue that the Motions should be denied because Plaintiff did not make a reasonable attempt to meet and confer before filing them and Plaintiff did not file them until six months after Defendants served their responses. No meet and confer efforts are required before filing a motion for sanctions, however. (See, e.g., CCP §§ 2023.030, 2023.040.) Notably, the Motions do not seek to compel further responses, and there is otherwise no express time limit for bringing a motion for sanctions. (See id.)

Defendants argue that their RFP and SPROG responses are legally sufficient and that Plaintiff’s arguments that the responses are incomplete and evasive are granular and misplaced. Defendants, however, cite to no legal authority and cite to no particular responses to support this point. Contentions are waived when a party fails to support them with reasoned argument. (Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215.)

Defendants also contend that the slim document production was due to an error of a paralegal of which they were previously unaware and that they would send Plaintiff their respective complete responsive documents. (See Declaration of Steffanie Stelnick (“Stelnick Decl.”) ¶ 4.)[2]

The Court declines to issue terminating or issue sanctions. While Defendants have conceded Plaintiff’s argument that their responses remain evasive, there is some evidence that they were unaware of the extent (or lack thereof) of their document production. Although Plaintiff was not required to meet and confer before filing the Motions, the Court has taken into consideration the totality of the circumstances, including the attempts to informally resolve the issue. (See Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) In addition, while Plaintiffs did not have a statutory deadline dictating the timeliness of the Motions, the Court finds it relevant that Plaintiff did not file the Motions until six months after Defendants provided responses pursuant to the Court’s June 22, 2022 order and under two months before the currently-scheduled trial date. The Court therefore DENIES the Motion with regard to terminating and issue sanctions.

Defendants have, however, misused the discovery process by repeatedly providing deficient responses and disregarding two Court orders. The Court therefore finds it appropriate to issue a monetary sanction.

Plaintiff seeks attorney’s fees and costs for each Motion. In connection to the Rusconi Motion, Plaintiff seeks sanctions in the amount of $4,961.65. (Rusconi Mot. Ashbaugh Decl. ¶ 57.) This amount represents: (1) 13 hours preparing the Rusconi Motion and accompanying papers; (2) an anticipated four hours reviewing the Oppositions and preparing the Replies; (3) an anticipated two hours attending the hearing at an hourly rate of $250 per hour; (4) a $61.65 filing fee; and (5) a $150 fee for service of process. (Rusconi Mot. Ashbaugh Decl. ¶¶ 51-52, 55-56.)

Plaintiff requests $4,811.65 in connection to the Adams Motion. (Adams Mot. Ashbaugh Decl. ¶ 42.) This amount represents an allocation of time and expenses minus the $150 service of process fee. (See Adams Mot. Ashbaugh Decl. ¶¶ 38, 42.)

The Court exercises its discretion and GRANTS the Motions’ requests for monetary sanctions in the reasonable amount of $2,623.33, which represents a total of 10 hours of work spent on the Motions collectively at a rate of $250 per hour and $123.30 total in filing fees. (Moran v. Oso Valley Greenbelt Assn. (2004) 117 Cal.App.4th 1029, 1034.) Defendants and counsel are jointly to pay this amount within 20 days of this order. In light of the foregoing, Defendants’ request for monetary sanctions is DENIED.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative. If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org stating your intention to appear in person. The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date. This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

[1] The Rusconi Motion was filed on January 12, 2023, and the Adams Motion was filed on January 18, 2023.

[2] In its reply briefs (collectively, the “Replies”), Plaintiff presents evidence that upon receiving Defendants’ responses in July 2022, Plaintiff’s counsel contacted Defendants’ counsel to confirm that their document production was complete. (See Supp. Rusconi Decls. ¶ 30, Exhibit 2.) Defendants’ counsel affirmed that as of that time, Defendants’ document production was complete. (Rusconi Decls. ¶ 31, Exhibit 3.)