Judge: Holly J. Fujie, Case: BC512275, Date: 2022-11-14 Tentative Ruling

Case Number: BC512275    Hearing Date: November 14, 2022    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Defendant Sheryl Rosenberg (“Moving Defendant”)

The Court has considered the moving papers.  No opposition papers were filed.  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).

BACKGROUND      

This action arises out of a family dispute over the management and control of SD Sheryl Brigette, LLC (the “LLC”).  The currently operative third amended complaint (the “TAC”) alleges: (1) declaratory relief; (2) breach of fiduciary duty (individual); (3) breach of fiduciary duty (derivative); (4) accounting and constructive trust; and (5) judicial expulsion. 

On September 2, 2022, following an Informal Discovery Conference (“IDC”), the Court entered an order compelling Plaintiff to file further supplemental, code-compliant verified responses to the Requests for Admission, set three (the “RFAs”), Form Interrogatories, set three (the “FROGs”), and Requests for Production, set four (the “RFPs”).

On October 17, 2022, Moving Defendant filed a motion for terminating sanctions and for an order finding Plaintiff in contempt (the “Motion”) based on Plaintiff’s noncompliance with the Court’s September 2, 2022 order.  The Motion alternatively requests that the Court impose issue, evidentiary, and/or monetary sanctions against Plaintiff for her failure to comply with the September 2, 2022 order.

DISCUSSION

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 two facts are generally a prerequisite to the imposition of nonmonetary sanctions.  (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.)  Absent unusual circumstances, there generally must be: (1) a failure to comply with a court order; and (2) the failure must be willful.  (Id.)  A decision to order terminating sanctions should not be made lightly. (Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 702.)  Where a trial court imposes a terminating sanction, a trial court can strike out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.  (Id. at 1701.)  Although in extreme cases a court has the authority to order a terminating sanction as a first measure, a terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective.  (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604-05.)

The September 2, 2022 order directed Plaintiff to serve further responses by October 7, 2022.  Plaintiff served unverified responses on October 7, 2022.  (Declaration of Gary J. Lorch (“Lorch Decl.”) ¶ 12.)  On October 19, 2022, Plaintiff served verifications to her responses.  (Lorch Decl. ¶ 13.)  Moving Defendant contends that Plaintiff’s responses remain inadequate and improper.  (See Lorch Decl. ¶¶ 12, 18, Exhibits J-L.)

The Court finds that the Motion does not adequately set forth a basis for imposing terminating, issue, or evidentiary sanctions or for issuing a contempt order at this time.  Plaintiff served supplemental responses on the deadline; while verifications were not served until the next business day, this delay does not demonstrate a willful noncompliance with the Court’s September 2, 2022 order.  To the extent that Moving Defendant seeks to compel Plaintiff to produce further responses, Moving Defendant may schedule an IDC so that the parties may attempt to informally resolve the issue. 

The Court therefore DENIES the Motion.  Based on the foregoing, the Court declines to award Moving Defendant monetary sanctions.

The Court therefore DENIES the Motion without prejudice.

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 14th day of November 2022