Judge Holly J. Fujie, Case 21STCV24488 2023-04-18 Tentative Ruling

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

The currently operative fourth amended complaint (the “4AC”) alleges: (1) statutory voidable transfers; and (2) common law voidable transfers. On March 14, 2023, Plaintiff filed: (1) a motion for sanctions (the “Sanctions Motion”); and (2) a motion to continue the trial date (the “Trial Motion”).[1]

Under 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.)

The Sanctions Motion requests that the Court impose evidence and monetary sanctions against Defendants due to their continued failure to comply with discovery requirements and court orders. On February 9, 2023, the Court issued an order after considering another motion for sanctions filed by Plaintiff that directed Defendants to serve further responses to Plaintiff’s Requests for Production (“RFPs”), Set 3 that were code-compliant. The Sanctions Motion contends that Defendants’ continued failure to provide supplemental answers containing proper statements of compliance should result in the imposition of an evidentiary sanction that prohibits Defendants from introducing documents that are responsive to RFPs numbers 89-91 at trial. Defendants’ opposition (the “Sanctions Opposition”) presents evidence that on March 15, 2023, Defendants provided further supplemental responses to RFPs 89-91 that specify that responsive documents have been lost. (See Sanctions Opposition, Exhibit A.)

Defendants have now provided further responses that comply with the Court’s February 9, 2023 order. The Court will therefore not issue evidence sanctions. The Court finds, however, that monetary sanctions are appropriate, as code-compliant responses were served only after Plaintiff filed the Sanctions Motions despite Plaintiff’s attempt to confer with Defendants on the responses they sent on February 13, 2023. (See Declaration of Lyle Mink (“Mink Decl.”) ¶¶ 9-13.)

Plaintiff requests $2,561.65 in monetary sanctions. (Mink Decl. ¶ 15.) This amount represents: (1) two hours preparing the moving papers at a rate of $500 per hour; (2) an anticipated one hour drafting reply papers; (3) an anticipated two hours preparing for and attending the hearing; and (4) a filing fee of $61.65. (Mink Decl. ¶¶ 15-16.) The Court exercises its discretion and GRANTS Plaintiff monetary sanctions in the reasonable amount of $1061.65, which represents two hours preparing the moving papers 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.) Defendants and their counsel are jointly responsible for paying this amount within 20 days of the date of this order.[2]

California Rules of Court (“CRC”), rule 3.1332(a) provides that trial dates are firm to ensure prompt disposition of civil cases. (CRC, r. 3.1332(a).) Continuances are thus generally disfavored. (CRC, r. 3.1332(b).) Nevertheless, the trial court has discretion to continue trial dates. (Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246.) Each request for continuance must be considered on its own merits and is granted upon an affirmative showing of good cause. (CRC, r. 3.1332(c).) Circumstances that may indicate good cause include: (1) the unavailability of an essential lay or expert witness due to death, illness, or other excusable circumstances; (2) the unavailability of a party due to death, illness, or other excusable circumstances; (3) the unavailability of trial counsel due to death, illness, or other excusable circumstances; (4) the substitution of trial counsel where there is an affirmative showing that the substitution is required in the interests of justice; (5) the addition of a new party if (a) the new party has not had a reasonable opportunity to conduct discovery and prepare for trial, or (b) the other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party’s involvement in the case; (6) a party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or (7) a significant, unanticipated change in the status of the case as a result of which the case is not ready for trial. (Id.)

The court must also consider such relevant factors as: (1) the proximity of the trial date; (2) whether there was any previous continuance, extension of time, or delay of trial caused by any party; (3) the length of the continuance requested; (4) the availability of alternative means to address the problem that gave rise to the motion or application for a continuance; (5) the prejudice that parties or witnesses will suffer as a result of the continuance; (6) if the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; (7) the court’s calendar and the impact of granting a continuance on other pending trials; (8) whether trial counsel is engaged in another trial; (9) whether all parties have stipulated to a continuance; (10) whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and (11) any other fact or circumstance relevant to the fair determination of the motion or application. (CRC, r. 3.1332(d).)

Plaintiff requests that the trial be continued to November 27, 2023, and that trial-related deadlines be continued to correspond with the later date on the grounds that ongoing issues with discovery have prevented Plaintiff from being sufficiently prepared for the currently scheduled trial date. The Court finds that the impact of the of discovery issues in this matter is a sufficient basis to continue the trial. The Court therefore GRANTS the Trial Motion and continues the trial to December 5, 2023, at 9:30 a.m. in this department. The Final Status Conference is continued to November 28, 2023, at 8:30 a.m. in this department.

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 Trial Motion is unopposed. Any opposition papers were required to have been filed and served at least nine court days before the hearing under California Code of Civil Procedure (“CCP”) section 1005, subdivision (b).

[2] The February 9, 2023 order did not specify whether Defendants’ counsel was jointly responsible for paying awarded sanctions.