Judge: Jill Feeney, Case: 21STCV18571, Date: 2023-04-19 Tentative Ruling
Case Number: 21STCV18571 Hearing Date: April 19, 2023 Dept: 30
Superior Court of California
County of Los Angeles
Department 78
JESSE LAURICELLA,
Plaintiff,
vs.
FIREFLY FABRICATIONS, LLC, et al.;
Defendants.
Case No.: 21STCV18571
Hearing Date: April 19, 2023
[TENTATIVE] RULING RE:
DEFENDANTS FIREFLY FABRICATIONS, LLC AND JUSTIN CAMPBELL’S MOTION FOR TERMINATING SANCTIONS, OR IN THE ALTERNATIVE, MONETARY SANCTIONS
Defendants Firefly Fabrications, LLC and Justin Campbell’s Motion for Terminating Sanctions is DENIED.
Defendants Firefly Fabrications, LLC and Justin Campbell’s Motion for Monetary Sanctions is GRANTED in the amount of $3,600.00 against Plaintiff’s Counsel only.
Sanctions are payable within 30 days. Moving party to provide notice and to file proof of service of such notice within five court days after the date of this order.
FACTUAL BACKGROUND
This is an action for breach of contract. The operative First Amended Complaint alleges as follows.
In 2020, plaintiff Jesse Lauricella (“Plaintiff”) and defendant Justin Campbell (“Campbell”) entered into a contract for Campbell to make repairs and upgrades to Plaintiff’s boat (the “Boat”) through Campbell’s company, defendant Firefly Fabrications, LLC (“Firefly” and with Campbell, “Defendants”). (FAC ¶ 12.) In reliance on this agreement, Plaintiff purchased over $50,000 in parts and accessories for the Boat, which he delivered to Defendants. (Ibid.) Despite being in possession of these parts and accessories since September 2020, Defendants have failed to install them onto the Boat. (Ibid.) Additionally, though the project was only supposed to last two weeks, Defendants have failed to complete the project to date, and have placed unreasonable conditions and requests on Plaintiff before completing the project as agreed. (FAC ¶ 13.)
Plaintiff planned on renting out the boat, but due to the project delay has missed the opportunity to do so during boating season. (FAC ¶ 15.) The Boat is currently sitting disassembled in Defendants’ garage, such that Plaintiff is unable to hire another contractor to complete the work. (FAC ¶ 16.)
PROCEDURAL HISTORY
On May 17, 2021, Plaintiff filed the Complaint asserting six causes of action:
1. Breach of Contract;
2. Breach of the Implied Covenant of Good Faith and Fair Dealing;
3. Specific Performance;
4. Fraud;
5. Declaratory Relief; and,
6. Injunctive Relief
On July 6, 2021, Defendants filed a Demurrer to the Complaint.
On November 18, 2021, the Court sustained Defendants’ Demurrer as to the Fourth Cause of Action for Fraud. The Court granted Plaintiff thirty days leave to amend.
On December 15, 2021, Defendants filed an Answer.
On January 24, 2022, the parties stipulated to allow Plaintiff to file a First Amended Complaint.
On February 14, 2022, Plaintiff filed the operative First Amended Complaint asserting three causes of action:
1. Breach of Contract;
2. Breach of the implied Covenant of Good Faith and fair Dealing; and,
3. Fraud
On May 3, 2022, Defendants filed an Answer to the First Amended Complaint.
On June 17, 2022, Defendants filed several Motions to Compel Discovery after Plaintiff failed to provide any discovery responses.
On October 5, 2022, the Court granted Defendants’ Motions to Compel and awarded Defendants monetary sanctions in the amount of $2,422.50.
On March 24, 2023, Defendants filed the instant Motion for Terminating Sanctions or, in the Alternative, Monetary Sanctions.
On April 6, 2023, Plaintiff filed an Opposition.
As of April 14, 2023, no Reply has been filed. Any Reply was due by April 12, 2023.
DISCUSSION
I. MOTION FOR TERMINATING SANCTIONS
Defendants move for terminating sanctions due to Plaintiff’s failure to comply with Defendants’ discovery requests, and this Court’s orders.
If a party fails to obey a court order compelling it to provide a discovery response, “the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction . . . In lieu of or in addition to this sanction, the court may impose a monetary sanction . . . .” CCP §§ 2030.290(c), 2030.300(e), 2031.300(c), 2031.320(c).
The party seeking to impose sanctions need only show the failure to obey earlier discovery orders. (See Puritan Ins. Co. v. Sup.Ct. (Tri-C Machine Corp.) (1985) 171 Cal.App.3d 877, 884 (interpreting former statute dealing with “refusal” to comply).) However, numerous cases hold that severe sanctions (i.e., terminating sanctions) for failure to comply with a court order are allowed only where the failure was willful. (See R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495; Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545; Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327).) The burden of proof then shifts to the party seeking to avoid sanctions to establish a satisfactory excuse for his or her conduct. (Corns v. Miller (1986) 181 Cal.App.3d 195, 201; Williams v. Russ (2008) 167 Cal.App.4th 1215, 1227.)
“The trial court may order a terminating sanction for discovery abuse after considering the totality of the circumstances: the 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 the discovery.” (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390; Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1224 (terminating sanctions by trial court not an abuse of discretion where defendant repeatedly violated court orders to produce records).)
“[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 and Tract Society of New York, Inc.¿(2016) 246 Cal.App.4th 566, 604 (terminating sanctions order reversed where there was no showing the court could not have obtained compliance by using lesser sanction (e.g., issue or evidentiary).)
Here, Defendants note that Plaintiff has failed to respond to discovery propounded on Plaintiff on May 6, 2022. (Chandler Decl. ¶ 4; Ex. A.) After not receiving initial responses, Defendants’ Council attempted to meet and confer regarding the missing discovery but did not receive a response from Plaintiff’s Counsel. (Id. ¶ 5.) Accordingly, Defendants filed the first motions to compel on June 17, 2022. (Id. ¶ 6.)
On October 5, 2022, the Court granted Defendants’ motion to compel and issued monetary sanctions against Plaintiff and Plaintiff’s Counsel in the amount of $2,422.50. (Id. ¶ 7; Ex. B.) Plaintiff again failed to serve discovery responses pursuant to the Court’s order, despite Defendants granting Plaintiff an extension and repeatedly trying to informally resolve the issue. (Id. ¶ 9.)
In Opposition, Plaintiff’s Counsel “falls on its sword” and concedes that the case slipped between the cracks when it was transferred from one partner to another. (Opposition at p. 2.) Plaintiff’s Counsel attests that he had mostly completed the discovery responses following the Court’s order on the prior motions to compel, but those responses were never served as Plaintiff’s Counsel was in the process of moving office spaces. (Hodges Decl. ¶ 3.)
On February 28, 2023, Plaintiff’s Counsel completed the verified and code compliant responses, and prepared to serve them. (Id. ¶ 5.) However, Plaintiff’s Counsel’s staff had a question regarding the discovery responses and failed to serve them at that time. (Id. ¶ 9.) Upon receiving this motion, Plaintiff’s Counsel served code compliant responses on March 27, 2023. (Id. ¶ 10; Exs. A-F.)
The Court finds that terminating sanctions would be inappropriate here, as code compliant discovery responses have been served and Plaintiff’s Counsel has explained the failure to timely serve those responses.
However, the Court also finds that it is in the interest of justice to compensate Defendants for the time required to file the instant motion.
Accordingly, the Court awards Defendants monetary sanctions pursuant to Code of Civil Procedure section 2023.010(g).
Defendants seek monetary sanctions in the amount of $4,500.00, representing ten hours of attorney time billed at $450.00 per hour.
While the Court finds the billable rate reasonable, the Court notes that included in Defendants’ Council’s calculations are three hours to review the Opposition and draft a Reply. (Chandler Decl. ¶ 13.) As no Reply has been filed, the Court deducts two hours, or $900.00, from Defendants’ sought award.
And, as there is no indication that Plaintiff had any role in, or knowledge of, the discovery delay, the Court issues monetary sanctions as to Plaintiff’s Counsel, Chandler Law Firm, APC, only.
Accordingly, Defendants’ Motion for Monetary Sanctions is GRANTED in the amount of $3,600.00 as to Plaintiff’s Counsel only.
CONCLUSION
Defendants’ Motion for Terminating and Issue Sanctions is DENIED.
Defendants’ Motion for Monetary Sanctions is GRANTED in the amount of $3,600.00 against Plaintiff’s Counsel.
DATED: April 19, 2023
____________________________
Hon. Jill T. Feeney
Judge of the Superior Court
