Judge: Joseph Lipner, Case: 22STCV06395, Date: 2024-05-30 Tentative Ruling

Case Number: 22STCV06395    Hearing Date: May 30, 2024    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Plaintiff Teresa Forshee moves for an order imposing terminating sanctions against Defendant Millett & Dominguez, LLC (“Millett”), striking Millett’s answer, and entering default against Millett. Plaintiff also seeks $2,160.00 in monetary sanctions against Millett in addition to previous sanctions.

The Court CONTINUES Plaintiff’s motion for terminating sanctions to July 2, 2024. If Millett does not comply with all previous discovery orders and sanctions by that time, the Court will issue terminating sanctions.

The Court GRANTS Plaintiff’s motion for monetary sanctions IN PART. Millett shall pay $1,635.00 in sanctions to Plaintiff’s counsel within 30 days of the issuance of this order.

Background

This is an elder abuse and fraud case.

Plaintiff is the representative of the estate of Magdalena Burger. Plaintiff alleges that Defendants forged a grant deed to 14900 Rhinestone Drive, Sherman Oaks, California 91403 (the “Property”), which purported to transfer the Property from Plaintiff to Defendants.

Plaintiff filed this action on February 22, 2022 against Defendants Sydney Atkins, Millet, Sara Irene Daniels, Larry Donnell Ford, Merchants Bonding Company (“Merchants”), Godrick Williams III, and Blue Royalties Trucking LLC.

Plaintiff was faced with significant challenges in effecting service on Millett. Millett was eventually served. Millett filed an answer on March 29, 2023.

On August 18, 2023, Plaintiff served a set of written discovery on Millett, namely: Form Interrogatories, Set No. One, Special Interrogatories, Set No. One, Request for Production of Documents, Set No. One, and Request for Admissions, Set No. One.

Millett did not serve responses on Plaintiff, and Millett’s counsel was nonresponsive to communications from Plaintiff’s counsel.

On October 6, 2023, Plaintiff filed motions to compel with respect to each of the discovery items served on Millett.

An IDC was held on January 22, 2024. At the IDC, counsel for Millett represented that he was in contact with representatives of Millett and that responses would be provided. (Jackman Decl. ¶ 4.)

Plaintiff did not receive any subsequent communication from Millett’s counsel. Millett did not file oppositions to Plaintiff’s motions.

On February 1, 2024, the Court granted Plaintiff’s motions to compel. The Court ordered that all responses were due within 30 days of the Court’s order. The Court ordered Millett to produce a person most qualified for deposition. The Court ordered Millett to pay $1,800.00 in sanctions to Plaintiff’s counsel within 30 days of the order. Millett appeared at the hearing via new counsel, although it had not substituted counsel. This new counsel never substituted in, and informed Plaintiff’s counsel after the hearing that they would not be substituted in. (Jackson Decl. ¶ 6.)

On February 2, 2024, Plaintiff served a notice of the ruling on the discovery motions on Millett’s counsel. (Jackman Decl. ¶ 7.)

On February 16, 2024, Plaintiff’s counsel emailed Defendant’s counsel, informing him that responses and depositions were to be completed within 30 days of the court order and requesting deposition dates. (Jackman Decl. ¶ 7.)

As of the time when this motion was filed, Millett had not provided discovery responses, produced a PMK for deposition, or paid the court-ordered sanctions.

Plaintiff filed this motion on April 11, 2024. Millett 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).)      

Monetary sanctions may be imposed “ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct…unless [the Court] finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code of Civ. Proc., § 2030.030, subd. (a).) 

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

Terminating Sanctions

As discussed above, terminating 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, supra, 196 Cal.App.4th at p. 1516.) Furthermore, 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, supra, 60 Cal.App.4th at p. 1326.) 

“[T]he trial court may impose terminating sanctions as a first measure in extreme cases, or where the record shows lesser sanctions would be ineffective. (Department of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 191–192.) In Department of Forestry & Fire Protection v. Howell, the trial court found that “[the party’s] willful, repeated and egregious misuses of the discovery process permeated nearly every single significant issue in this case to an extent that threatened the integrity of the judicial process and made it implausible that defendants could ever receive a fair trial. (Id. at 197 [internal quotations omitted].)

Here, Millett has provided Plaintiff with no discovery in this action, despite having answered over a year ago. Furthermore, Millett’s discovery behavior appears to have primarily consisted of stone-walling Plaintiff’s counsel. Millett’s counsel did not respond to Plaintiff’s counsel when Plaintiff initially attempted to meet and confer, or after the IDC. Millett’s counsel’s representation at the IDC appears to have been unintentionally misleading at best, and deliberately misleading at worst, given the lack of follow-up communication.

Millett’s continued unresponsiveness following the Court’s order does not improve matters. Plaintiff’s counsel repeatedly attempted to communicate with Millett’s counsel regarding the court order to no avail. If Millett’s counsel was unable to contact Millett, he could have communicated that to Plaintiff’s counsel, but did not. In any event, nearly four months later, Millett has not complied with any of the discovery orders or sanctions issued by the Court on February 1. The Court believes that terminating sanctions are warranted. However, out of an abundance of caution, the Court will continue the hearing on this motion for approximately 30 days to give Millett as much of an opportunity as possible to comply with the prior orders.

Monetary Sanctions

The Court finds that monetary sanctions for failure to comply are warranted.

Plaintiff requests an hourly rate of $350.00 for attorney Ryan Jackman. The Court finds this rate to be reasonable based on Jackman’s experience.

Plaintiff requests 6 hours for Jackman, including 1.5 for preparing a reply to an opposition. The Court reduces this amount to 4.5 hours because no opposition was filed. The Court awards $1,575.00 in attorney’s fees.

Plaintiff requests $60.00 in filing fees for this motion. The Court approves this request.

The Court awards a total of $1,635.00 in attorney’s fees and costs.