Judge Holly J. Fujie, Case 21STCV14481 2023-01-03 Tentative Ruling

The Court has considered the moving papers. Any opposition papers were required to have been filed and served at least nine court days before the hearing pursuant to California Code of Civil Procedure (“CCP”) section 1005, subdivision (b). On December 27, 2022, after the CCP section 1005 deadline expired, Defendant Mike H. Davidyan (“Defendant”) filed a declaration stating that he has been sick. This declaration does not otherwise address the merits of the moving papers.

This action arises out of a dispute concerning real property (the “Property”). Plaintiff’s complaint (the “Complaint”) alleges: (1) fraud; (2) undue influence; (3) financial abuse; (4) quiet title; (5) cancellation of instruments; (6) return of real property to elder/dependent adult; and (7) intentional infliction of emotional distress. Defendant’s currently operative second amended cross-complaint (the “SAXC”) alleges: (1) breach of written contract; (2) breach of release agreement; and (3) promissory estoppel.

On December 5, 2022, Plaintiff filed a motion for terminating sanctions (the “Motion”) on the grounds that Defendant has willfully misused discovery procedures and disobeyed court orders. The Motion requests that the Court issue terminating sanctions by striking the SAXC and Defendant’s answer to the Complaint. The Motion alternatively requests that the Court impose issue and/or monetary sanctions against Defendant.

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.) 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.)

The Motion seeks sanctions based on Defendant’s failure to provide discovery responses and comply with orders issued by the Court on December 7, 2021, February 18, 2022, and October 6, 2022.

On October 6, 2022, the Court granted five unopposed motions to compel Defendant’s discovery responses filed by Plaintiff.[1] The Court’s October 6, 2022 order directed Defendant to provide written discovery responses within 20 days, attend his continued deposition on November 15, 2022, and pay Plaintiff’s counsel $3,550 in monetary sanctions.

On November 14, 2022, Defendant emailed Plaintiff’s counsel stating that he was sick and could not leave his house. (Declaration of Carolyn A. Barnes (“Barnes Decl.”) ¶ 6, Exhibit F.) Defendant indicated that he hoped to comply with the Court’s order by November 20, 2022. (See id.) Defendant did not appear for his November 15, 2022 deposition. (Barnes Decl. ¶ 4.) On November 28, 2022, Defendant called Plaintiff’s counsel and acknowledged his failure to comply with the Court’s October 6, 2022 order and made reference to health issues he was experiencing. (See Barnes Decl. ¶ 7.) Later that day, Defendant emailed Plaintiff’s counsel stating that he understood that he would not be provided with extra time to provide discovery responses and that he expected to provide responses by December 13, 2022. (See Barnes Decl. ¶ 7, Exhibit G.)

Before October 6, 2022, the Court had issued orders on two earlier discovery motions filed by Plaintiff. On December 7, 2021, the Court granted two motions to compel further responses and on February 18, 2022, the Court granted one motion to compel responses. Both the December 2021 and February 2022 orders required that Defendant produce responses and imposed monetary sanctions against Defendant for his misuse of the discovery process. Defendant has never paid any sanctions owed to Plaintiff. (Barnes Decl. ¶ 7.)[2] In addition, on August 31, 2022, the Court granted Plaintiff’s unopposed motion to continue the trial date that cited Defendant’s failure to cooperate in the discovery process as a basis for the continuance.

The Court declines to impose terminating or issue sanctions at this time. This is the first time Defendant has disobeyed a Court order concerning the discovery requests addressed in the October 6, 2022 order. Although Plaintiff has resorted to and prevailed on previous discovery motions, Plaintiff has not provided evidence that Defendant disobeyed the December 7, 2021 or February 18, 2022 orders other than by failing to pay sanctions.[3] The Court does not find that Defendant’s failure to pay monetary sanctions is a sufficient basis to impose further sanctions that affect the merits of the claims in the Complaint and SAXC. The Court notes, however, that the record demonstrates that Defendant has exhibited a pattern of dilatory conduct regarding his discovery obligations. The Court may consider imposing harsher sanctions against Defendant should Plaintiff request them in the future.

Notwithstanding the foregoing, it is undisputed that Defendant has not complied with the October 6, 2022 order and the Court finds it appropriate to impose monetary sanctions as a result of his failure to comply with the discovery obligations set forth in that order and to require Defendant to comply with that order. Plaintiff requests monetary sanctions in the amount of $5,250. (Barnes Decl. ¶ 8.) This amount represents six hours of work drafting the moving papers at an hourly rate of $875 per hour. (Id.) The Court exercises its discretion and GRANTS Plaintiff monetary sanctions in the reasonable amount of $3,500, which represents four hours of work at a rate of $875 per hour. (Cornerstone Realty Advisors, LLC v. Summit Healthcare Reit, Inc. (2020) 56 Cal.App.5th 771.) Monetary sanctions are to be paid by Defendant to Plaintiff within 20 days of the date of this order. The Court therefore GRANTS the Motion insofar as it requests monetary sanctions. In addition, the Court ORDERS that Defendant comply with the October 6, 2022 order within 20 days of this order. If, during this time, circumstances arise that prevent Defendant from complying with his obligations under the October 6, 2022 order, Plaintiff may file a motion for a protective order. Any assertion of health issues must be supported by a sworn declaration from a medical professional.

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] Four of the motions considered in the October 6, 2022 order sought further responses and one of the motions sought initial responses.

[2] The current Motion does not appear to implicate the underlying discovery requests at issue in the motions considered in the December 2021 and February 2022 orders.

[3] None of the discovery motions addressed in the October 6, 2022 order implicated discovery requests ruled on in the earlier orders. In addition, the Court’s records do not show that Plaintiff has previously filed a motion to compel Defendant’s compliance with the earlier orders.