Judge: Holly J. Fujie, Case: 22TCV03944, Date: 2023-05-11 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: 22TCV03944    Hearing Date: May 11, 2023    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Plaintiff

RESPONDING PARTY: Specially Appearing Defendant Alan Golombeck (“Defendant”)

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

BACKGROUND      

The currently operative first amended complaint (the “FAC”) alleges: (1) breach of contract (count 1); (2) breach of contract (count 2); (3) breach of fiduciary duty; (4) breach of guaranty; (5) conversion; (6) negligent misrepresentation; (7) fraud and concealment; and (8) civil theft.

            On April 14, 2023, Plaintiff filed a motion for sanctions (the “Motion”) pursuant to California Code of Civil Procedure (“CCP”) sections 2023.1010, subdivision (g) and 2023.030.  The Motion requests that the Court impose evidentiary and monetary sanctions against Defendant and his counsel based on Defendant’s failure to comply with a court order issued on March 17, 2023. 

DISCUSSION

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 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.) 

On March 16, 2023, Plaintiff filed an ex parte application (the “Application”) for an order advancing the hearing on Defendant’s pending motion to quash service of process (the “MTQ”) and allowing Plaintiff to conduct jurisdictional discovery before the hearing on the MTQ.  On March 17, 2023, after considering the parties’ arguments, the Court granted the Application and issued an order (the “Order”) continuing the MTQ hearing to June 14, 2023 and ordering Defendant to appear for a deposition via Zoom no later than April 14, 2023.  The Court also issued a minute order on March 17, 2023 that incorporated the Order.  Notice of the March 17, 2023 ruling was served on March 19, 2023.

Plaintiff provides evidence that after Defendant’s counsel did not provide a suitable date to conduct the deposition, and on March 23, 2023, Plaintiff served a notice of Defendant’s deposition for April 4, 2023 (the “Deposition Notice”).  (See Declaration of Ronald Richards (“Richards Decl.”) ¶¶ 5-6; Declaration of Geoffrey Long (“Long Decl.”) ¶ 3, Exhibit B.)  The Deposition Notice provided that the deposition would be conducted in person.  (See Long Decl., Exhibit B.)  On March 24, 2023, Defendant filed a petition for writ of prohibition (the “Writ Petition”) requesting that his deposition be stayed, which was denied by the Court of Appeal on April 3, 2023.  (Richards Decl., ¶¶ 7-8, Exhibit C.) Defendant served objections to the Deposition Notice on March 29, 2023.  (Long Decl. ¶ 4, Exhibit D.)  On March 30, 2023, Plaintiff’s counsel attempted to confer with Defendant’s counsel about the terms of the deposition and agreed to conduct the deposition via Zoom, but Defendant did not provide alternate deposition dates.  (Long Decl. ¶¶ 5-6, Exhibit E.)  Nor did Defendant provide suitable dates after the Court of Appeal denied the Writ Petition.  (Richards Decl. ¶ 10.)  A notice of non-appearance was taken on April 4, 2023.  (Richards Decl. ¶ 11, Exhibit F.)

Defendant provides evidence that after the Court of Appeal denied the Writ Petition, he proposed three potential deposition dates at the end of April.  (Declaration of Robert W. Hirsh (“Hirsh Decl.”) ¶ 18, Exhibit J.)  Defendant also presents evidence that his observation of Passover limited his ability to appear for a deposition before April 13, 2023.  (See Hirsh Decl. ¶¶ 15-16; Declaration of Ian Golombeck (“Golombeck Decl.”) ¶¶ 4-7.)

The Court observes that the Deposition Notice Plaintiff served on Defendant deviated from the terms of the Court’s March 17, 2023 Order—for example, the Deposition Notice called for an in-person deposition and did not expressly limit the deposition’s scope to the jurisdiction issues that are germane to the MTQ.  Although Defendant’s deposition did not occur by the date ordered in the March 17, 2023 Order, some of the delay appears to be due to Defendant’s objections to the terms of the Deposition Notice that are inconsistent with the scope of the deposition ordered by the Court.  The Court therefore declines to impose monetary or evidentiary sanctions against Defendant at this time.  The Court finds it appropriate however, to allow Plaintiff to depose Defendant in anticipation of the MTQ hearing.  The Court therefore GRANTS the Motion in part and orders that Defendant appear for his deposition via Zoom within the next 20 days.  (See Manlin v. Milner (2022) 82 Cal.App.5th 1004, 1024.)  Should a dispute arise concerning the scope of Plaintiff’s requests or the sufficiency of Defendant’s responses, the parties may move to compel further answers or move for a protective order if necessary.  Defendant’s request for monetary sanctions is DENIED.

Moving party is ordered to give notice of this ruling.

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 11th day of May 2023