Judge Holly J. Fujie, Case 21STCV14481 2023-03-28 Tentative Ruling

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 March 1, 2023, 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.

Plaintiff’s Request for Judicial Notice is GRANTED as to the existence of the documents, but not to the truth of the matters stated therein. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113.)

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 detriment 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 October 6, 2022 and January 3, 2023.

On October 6, 2022, the Court granted five unopposed motions to compel Defendant’s discovery responses filed by Plaintiff and ordered 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. [1]

On January 3, 2023, the Court ruled on a previous motion for sanctions filed by Plaintiff. In its January 3, 2023 order, the Court declined to issue terminating or issue sanctions, but ordered Defendant to appear for his deposition by January 23, 2023, provide written responses by January 22, 2023, and pay Plaintiff monetary sanctions.

The Motion argues that the Court should issue terminating sanctions against Defendant because Defendant failed to comply with any of the terms of the Court’s January 3, 2023 order and provides evidence that Defendant did not appear for his deposition on January 23, 2023, submit further written responses, or pay Plaintiff monetary sanctions. (See Declaration of Carolyn A. Barnes (“Barnes Decl.”) ¶¶ 5, 6, 8, Exhibits B-D.)

Defendant’s opposition (the “Opposition”) contends that Defendant has made efforts to comply with the Court’s orders. Defendant provides evidence that he provided supplemental interrogatory responses on March 5, 2023 and March 13, 2023. (Declaration of Mike Davidyan (“Davidyan Decl.”) ¶ 2, Exhibit 2.) Defendant also declares that he attempted to meet and confer with Plaintiff’s counsel regarding the January 3, 2023 order but did not receive a response, although Defendant provides no information regarding when or how he attempted to engage in these meet and confer efforts. (See Davidyan Decl. ¶ 3.) Defendant further declares that he has made his best efforts to comply with the court’s orders in light of his limited command of the written language. (Davidyan Decl. ¶ 5.) The Opposition provides no information about Defendant’s failure to appear for his deposition on January 23, 2023.

The record demonstrates that Defendant has exhibited a pattern of dilatory conduct regarding his discovery obligations, which has already required Plaintiff to obtain a trial continuance. In addition, the discovery responses included with the Opposition improperly contain objections and are not code-compliant. The record does not indicate that Defendant ever provided written responses to Plaintiff’s document requests. The documents Defendant has provided are unlabeled and do not specify the corresponding discovery request to which they are responsive. Defendant has provided no explanation for his failure to appear for his deposition, despite clear orders requiring him to do so. The Court notes that its January 3, 2023 order instructed Defendant to move for a protective order if he had concerns about his ability to comply with the October 6, 2022 order, which Defendant did not do. Furthermore, despite Defendant’s assertion otherwise, the record in this case reflects that he has engaged in substantial motion practice that demonstrates an understanding of the law and an ability to convey legal arguments in writing. The record also shows that Defendant has a pattern of attempting to provide any semblance of discovery responses only after Plaintiff has already filed motions to compel or motions for sanctions with the Court. This pattern of conduct leads the Court to find that Defendant’s failure to comply with the Court’s orders is willful.

In light of the foregoing, the Court finds that it is appropriate to impose issue sanctions and that the following facts shall be established in future proceedings:

(1) On October 10, 2016 when Plaintiff Joyce Atlas signed documents transferring

(2) The grant deed, sales agreement, and release agreement transferring title of Plaintiff’s home to Defendant, were procured by Defendant’s fraud and misrepresentation.

The Court additionally finds it appropriate to issue monetary sanctions. Plaintiff requests monetary sanctions in the amount of $3,550, which represents four hours drafting the moving papers at an hourly rate of $875 per hour. (Barnes Decl. ¶ 14.) The Court exercises its discretion and GRANTS Plaintiff monetary sanctions in the requested amount of $3,550. (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 and issue sanctions. In addition, the Court orders Defendant to comply with the January 3, 2023 order within 20 days of this order. If Defendant fails to comply with any of these orders in a timely and full manner, the Court will likely grant a Motion for Terminating Sanctions if brought by Plaintiff.

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. 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