Judge: Joseph Lipner, Case: 21STCV01400, Date: 2023-10-05 Tentative Ruling

Case Number: 21STCV01400    Hearing Date: December 5, 2023    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Plaintiff Global Financial Partners, Inc. (“Plaintiff”) moves for terminating sanctions against Defendants Brent Paysinger and Craig Chisvin (collectively, the “Individual Defendants”). Plaintiff additionally requests attorney’s fees in the amount of $4,522.50 and the re-imposition of monetary sanctions previously imposed by the Court.

Plaintiff’s motion is GRANTED IN PART as follows:

The Court ORDERS Brent Paysinger to pay previously imposed sanctions in the amount of $1,391.25 no later than December 15, 2023. 

The Court ORDERS Craig Chisvin to pay previously imposed sanctions in the amount of $1,496.25 no later than December 15, 2023. 

The Court SANCTIONS Brent Paysinger in the further amount of $1,338.75.  Brent Paysinger shall pay that additional amount to Plaintiff no later than December 15, 2023. 

The Court SANCTIONS Craig Chisvin in the further amount of $1,338.75.  Craig Chisvin shall pay that amount to Plaintiff no later than December 15, 2023. 

Moreover, the Court admonishes and warns Defendants that if they do not comply  with all outstanding discovery orders and comply with the orders above, they may face terminating sanctions.  

The Court continues this hearing to December 18, 2023 at 9:30 a.m. to review compliance with the Court’s outstanding orders.  If Defendants have not complied with the Court Orders, the Court may issue terminating sanctions.

Plaintiff will give notice.

Background

This lawsuit arises from a cash advance agreement under which Plaintiff advanced costs of litigation to Paysinger to pay for costs associated with a personal injury action in which Paysinger was represented by Chisvin and Chisvin, PLC (the “Law Firm”). Plaintiff alleges that Paysinger failed to pay the funds owed as required by the agreement and that the Law Firm and Chisvin has not fulfilled its obligation under a signed attorney acknowledgment to promptly pay Plaintiff.

Plaintiff filed this action against the Chisvin, Paysinger, and the Law Firm on January 12, 2021.

During the pendency of this action, Plaintiff has successfully litigated a number of discovery motions and obtained sanctions where the Individual Defendants.

On September 27, 2022, the Court granted Plaintiff’s motion to compel further discovery responses to requests for admissions and form interrogatories served on both Chisvin and Paysinger. The Court sanctioned the Chisvin and Paysinger each in the amount of $645.00 (the Court notes that Plaintiff incorrectly calculated the award as $750 total, divided between the Individual Defendants for $375 each).

On December 13, 2022, the Court sanctioned Chisvin and Paysinger each in the amount of $423.75 for failing to comply with the September 27, 2022 order to respond to the requests for admission. The Court denied Plaintiff’s requests for an order compelling compliance and an order for terminating sanctions because those types of relief are not available with respect to requests for admission and because the Individual Defendants had only violated one discovery order.

On December 15, 2022, the Court granted Plaintiff’s motion to compel Chisvin to respond to its requests for production and sanctioned Chisvin in the amount of $427.50.

On December 20, 2022, the Court granted Plaintiff’s motion to compel Paysinger to respond to its requests for production and sanctioned Paysinger in the amount of $322.50.

On October 5, 2023, the Court granted Plaintiff’s motion to compel the depositions of Chisvin and Paysinger and did not award sanctions.

In total, the Court sanctioned Chisvin for $1,496.25 and Paysinger for $1,391.25 in connection with these motions. The Individual Defendants have still have not paid these sanctions.  (Evans Decl. ¶ 13.) Following these orders, the Individual Defendants failed to provide responses to Plaintiff’s requests for production and failed to appear for depositions. (Evans Decl. ¶ 13.)

Plaintiff filed this motion on November 1, 2023. On October 26, the Court advanced the hearing for the motion from December 19, 2023 to December 5, 2023. Defendants did not file an opposition. 

Legal Standard

Where a party misuses the discovery process, courts have discretion to impose terminating, issue, evidence or monetary sanctions. (Code Civ. Proc. §§ 2023.010(g), 2030.290(c); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) Misuse of the discovery process includes failure to respond to an authorized method of discovery or disobeying a court order to provide discovery. (Code Civ. Proc., §§ 2023.010(d), (g).)     

Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) “[A] penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.” (Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.) Further, preventing parties from presenting their cases on the merits is a drastic measure; terminating sanctions should only be ordered when there has been previous noncompliance with a rule or order and it appears a less severe sanction would not be effective. (Link v. Cater (1998) 60 Cal.App.4th 1315, 1326.) 

Before any sanctions may be imposed the court must make an express finding that there has been a willful failure of the party to serve the required answers. (Fairfield v. Superior Court for Los Angeles County (1966) 246 Cal.App.2d 113, 118.) Lack of diligence may be deemed willful where the party understood its obligation, had the ability to comply, and failed to comply. (Deyo v. Killbourne (1978) 84 Cal.App.3d 771, 787.) The party who failed to comply with discovery obligations has the burden of showing that the failure was not willful. (Id. at 788.) 

Discussion

As discussed above, terminating sanctions are an exceptional and severe remedy intended to punish the most egregious conduct. Here, there is a definite pattern of discovery abuse by the individual defendants, including noncompliance with multiple discovery orders. However, this behavior is not so extreme as to warrant terminating sanctions outright; rather, the case law such as Van Sickle appears to contemplate a steady increase in pressure on a party to comply.

The Court denies Plaintiff’s request for terminating sanctions at this time, but grants Plaintiff’s request for attorney’s fees as set forth below. Furthermore, the Court admonishes Chisvin and Paysinger to comply with the existing discovery orders and sanctions, and further admonishes them that continued noncompliance may warrant terminating sanctions.  Finally, the Court continues this matter to December 18, 2023 at 9:30 a.m. (the start of trial) and may issue terminating sanctions at that time if Defendants do not comply with court orders.

          Plaintiff has not provided evidence as to the hourly rate of its attorney Ryan Evans. The Court will therefore use the hourly rate of $525.00, which it held reasonable for Evans in the December, 2022 minute orders, to calculate fees.

The Court awards fees for 5.1 hours in total on this matter: .2 hours meeting and conferring with Defendants at the Final Status Conference on October 26, 4.8 hours researching and drafting the Motion and supporting papers, exhibits, and declarations, and .1 hours attending the hearing (reduced from 3.5 hours claimed for reviewing any opposition, drafting a reply brief, and preparing for and attending the hearing).

The total fee award is $2,677.5. Chisvin and Paysinger are each to pay $1,338.75 of this amount.