Judge: Holly J. Fujie, Case: 21STCV24488, Date: 2023-02-09 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.

Case Number: 21STCV24488    Hearing Date: February 9, 2023    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Plaintiff

RESPONDING PARTY: Defendants Michael Theodore (“Theodore”) and Casa Theodore, Inc. (“CTI”) (collectively, “Defendants”)

The Court has considered the moving, opposition and reply papers. 

BACKGROUND      

The currently operative fourth amended complaint (the “4AC”) alleges: (1) statutory voidable transfers; and (2) common law voidable transfers.  On January 5, 2023, Plaintiff filed a motion for sanctions (the “Motion”).  The Motion requests that the Court impose evidentiary and monetary sanctions against Theodore and CTI for their ongoing misuse of the discovery process and failure to comply with a Court order.

DISCUSSION

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.) 

On August 24, 2022, Plaintiff served Requests for Production, Set Three (the “RFPs”) on Defendants.  (Declaration of Lyle R. Mink (“Mink Decl.”) ¶ 3, Exhibits 1-2.)  Defendants served responses on October 7, 2022.  (Mink Decl. ¶ 4, Exhibits 3-4.)  On November 23, 2022, after Plaintiff and Defendants (the “Parties”) participated in an Informal Discovery Conference (“IDC”) concerning Defendants’ responses, the Court issued an order directing Defendants to serve supplemental, Code-compliant, verified responses to Plaintiff’s RFPs, Set Three numbers 89-91.  Defendants served supplemental responses on November 28, 2022.  (Mink Decl. ¶ 6, Exhibits 6-7.)  Plaintiff’s counsel attempted to confer with Defendants’ counsel regarding Plaintiff’s position that the further responses remain insufficient, but the Parties were unable to resolve the dispute.  (See Mink Decl. ¶¶ 7, 12, Exhibits 8-12.) 

Preliminarily, Defendants argue that the Motion should be denied because Plaintiff was required to file separate motions for Theodore and CTI.  Defendants cite no authority to support their position that the Motion must be denied on this basis.  Contentions are waived when a party fails to support them with reasoned argument under Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215.  The Court observes that the Notice of Motion identifies Theodore and CTI and their shared counsel as the subjects of the Motion.  Further, the same underlying facts form the basis for the sanctions sought against both Defendants and their counsel.  The Court will therefore address the Motion on its merits.

At the time of the November 23, 2022 IDC, the RFPs currently at issue included statements of inability to comply that provided: “The inability to comply is because the particular category of documents has been lost, misplaced, or stolen.  It is unknown who has possession, custody, or control of this category of documents.  Discovery is ongoing.”  (See, e.g., Separate Statement, RFP No. 89.)  The subsequently served responses mirror the language of the initial responses but add that the documents were destroyed to the statement of inability to comply.  (See id.) 

A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand.  (CCP § 2031.230.)  This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party.  (Id.)  The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.  (Id.)

Defendants contend that it is not legally impermissible to state multiple reasons for the failure to comply with a production request, while Plaintiff argues that the use of “or” in CCP section 2031.230 impliedly requires that responding parties ascribe their inability to comply with the request to one of the provided explanations.[1]  Plaintiff argues that the boilerplate statements of compliance render the responses unclear and evasive.  The Court agrees.[2]  If they are unsure of the status or location of requested documents, Defendants must specify their lack of knowledge and may serve amended responses if they locate or learn more information about the whereabouts of the documents.  The statement that documents have been destroyed should specify the time of destruction and the person or entity who destroyed them.

The Court declines to issue evidence sanctions at this time, although the Court may consider imposing more severe sanctions should Plaintiff file a future motion that is meritorious.  The Court therefore GRANTS the Motion in part.  Defendants are ordered to serve further responses that comply with the Court’s November 23, 2022 order within 20 days of this order. 

Monetary Sanctions

            Plaintiff requests $4,061.65 in sanctions in connection to the Motion.  (See Mink Decl. ¶ 14.)  This amount represents: (1) three hours preparing the Motion and accompanying papers at a rate of $500 per hour; (2) an anticipated two hours preparing the reply (the “Reply”); (3) an anticipated three hours preparing for and attending the hearing; and (4) a filing fee of $61.65.  (Mink Decl. ¶¶ 13-14.)  The Reply does not include an updated calculation of the time expended by Plaintiff’s counsel.

            The Court exercises its discretion and awards Plaintiff monetary sanctions to be paid within 20 days of this order in the reasonable amount of $1,561.65, which represents three hours preparing the Motion at a rate of $500 per hour and a $61.65 filing fee.  (Moran v. Oso Valley Greenbelt Assn. (2004) 117 Cal.App.4th 1029, 1034.)

Moving party is ordered to give notice of this ruling.

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.

        Dated this 9th day of February 2023