Judge: Kevin C. Brazile, Case: BC715924, Date: 2022-10-04 Tentative Ruling

Hearing Date: October 4, 2022

Case Name: Ysaguirre, et al. v. NEMT Solutions, LLC, et al.

Case No.: BC715031

Matter: (1) Motion for Sanctions

(2) Motion to Deem Admitted

(3) Motions to Tax Costs (2x)

Moving Party: Plaintiffs Diane Ysaguirre and Wilneisha Lennon, individually and 

as successors-in-interest to the Estate of William Ysaguirre

Responding Party: (1) (2) Unopposed

(3) (a) Defendants DACS Venture Holdings, LLC, RRT Enterprises, LP, 

SR & DR Operating Company, LLC, Stephen Reissman, and Diane Reissman and (b) Defendants NEMT Solutions, LLC and Veterans Rideshare, Inc.

Notice: OK

Ruling: The Motion for Terminating Sanctions is granted.  The Court will not 

award monetary sanctions.

The Motion to Deem Admitted is denied.

The Motions to Tax Costs are denied.

Plaintiffs to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

On August 8, 2019, Plaintiffs Diane Ysaguirre and Wilneisha Lennon, individually and as 

successors-in-interest to the Estate of William Ysaguirre, filed the Second Amended Complaint (“SAC”) against Defendants NEMT Solutions, LLC (“NEMT”), Veterans Rideshare, Inc. (“VRI”), DACS Venture Holdings, LLC, RRT Enterprises L.P., SR & DR Operating Company LLC, Stephen E. Reissman, Diane Reissman, and Does 1-100 for (1) Elder Abuse, (2) Violation Of The Unruh Act, and (3) Wrongful Death/Survival Action.  The SAC has been amended to reflect that Doe 8 is Cherri Martin.  Defendant Atlantic Specialty Insurance Company (“Atlantic”) has intervened.

1. Motions for Terminating Sanctions & to Deem Requests for Admission Admitted 

Plaintiffs seek terminating and monetary sanctions in the amount of $2,700 against Defendant Martin.  They argue, “Defendant Martin has repeatedly misused the discovery process by disobeying this Court’s Order to provide discovery, by failing/refusing to respond or submit to deposition, and by failing to genuinely meet and confer on outstanding discovery issues, namely her Court ordered deposition.”

Plaintiffs also seek to deem admitted their requests for admission, set one, propounded on Martin.  They contend Martin failed to provide any responses.

“California discovery law authorizes a range of penalties for conduct amounting to ‘misuse of the discovery process.’ ” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991.)  Misuses of the discovery process include “[u]sing a discovery method in a manner that does not comply with its specified procedures” (Code Civ. Proc. § 2023.010(b)); “[f]ailing to respond or to submit to an authorized method of discovery” (id., subd. (d)); “[m]aking an evasive response to discovery” (id., subd. (f)); and “[d]isobeying a court order to provide discovery” (id., subd. (g).)

Code Civ. Proc. § 2023.030 authorizes a trial court to impose monetary sanctions, issue sanctions, evidence sanctions, or terminating sanctions against “anyone engaging in conduct that is a misuse of the discovery process.”  In selecting the appropriate sanction, a trial court “should consider both the conduct being sanctioned and its effect on the party seeking discovery,” and should tailor the sanction to fit the harm caused by the abuse of the discovery process.  (Doppes, supra, 174 Cal.App.4th at p. 992.)  “The trial court cannot impose sanctions for misuse of the discovery process as a punishment.”  (Ibid.)

A terminating sanction “is a proper sanction to punish the failure to comply with a rule or an order only if the court’s authority cannot be vindicated through the imposition of a less severe alternative.”  (Rail Services of America v. State Comp. Ins. Fund (2003) 110 Cal.App.4th 323, 331 [concerning dismissal for a plaintiffs’ refusal to comply with discovery]; see also Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-80 [“[W]here a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.”].)

On November 13, 2020, this Court ordered that Martin appear for a deposition, but Martin only appeared for 30 minutes and thereafter refused to complete her deposition on another date.  Because Martin is not willing to appear for a deposition and has not submitted any statement to the contrary, the Court enters a terminating sanction.  Martin’s Answer is stricken, and her default is entered.  

Given the terminating sanction, the Court respectfully declines to award any monetary sanction.  Further, given that Martin’s default has been entered, the Court denies the Motion to Deem Admitted as moot.  This is because a “default admits the allegations of the complaint.”  (Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1303.)

2. Motions to Tax Costs

On September 23, 2021, the Court granted the motions for summary judgment of Defendants NEMT, VRI, DACS Venture Holdings, LLC, RRT Enterprises L.P., SR & DR Operating Company LLC, Stephen E. Reissman, and Diane Reissman.

On October 28, 2021, Defendants NEMT and VRI filed a memorandum of costs in the amount of $6,419.91.

On November 2, 2021, Defendants DACS Venture Holdings, LLC, RRT Enterprises L.P., SR & DR Operating Company LLC, Stephen E. Reissman, and Diane Reissman filed a memorandum of costs in the amount of $13,273.64.

Plaintiffs seek to strike the entirety of the aforementioned memoranda of costs.  They argue the memoranda are premature because no dismissal has been entered on Plaintiffs’ survival claim.  Plaintiffs also argue that certain claimed costs are prohibited, not reasonably necessary, or excessive.  

“If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary.  On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs.  Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion.”  (Ladas v. Cal. State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) 

Plaintiffs’ prematurity argument lacks merit.  Plaintiffs’ wrongful death and survivor claims were pled as one cause of action, and the Court granted summary judgment in favor of Defendants.  The Court subsequently entered judgment for Defendants and found that Plaintiffs would take nothing in this action.  There were no objections filed.  

As to the specific costs at issue, Plaintiffs have provided a chart in which they merely write, “[p]remature” or “[n]ot reasonably necessary” next to every cost requested.  Prematurity has been rejected, and the objections as to reasonableness have not been properly supported.  Therefore, the Motions to Tax Costs are denied.

Plaintiffs to give notice. 

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.