Judge: Lee W. Tsao, Case: BC710923, Date: 2023-09-26 Tentative Ruling
Case Number: BC710923 Hearing Date: November 7, 2023 Dept: C
Jose Manuel Choy vs Susy Salsberg,
et. al
NO.: BC710923
HEARING:
11/07/23
#9
TENTATIVE
ORDER
Motion for terminating sanctions is DENIED.
Motion for monetary sanctions, in the alternative, are
awarded for the reduced total amount of $11,250 payable within thirty (30)
days.
Motion for sanctions, in the alternative, to continue the
trial date and allow for reopening of the discovery period is GRANTED.
Background
This action was filed by
Plaintiff Jose Manuel Choy (“Plaintiff”) on June 20, 2018. On May 28, 2019, the
operative Second Amended Complaint (“SAC”) was filed. The relevant facts are as
follows: “This case involves a fraudulent scheme perpetrated by Defendants
designated to obtain a free veterinary consultation for both of their dogs.
Defendants misrepresented to Plaintiff, a veterinarian, that both of their dogs
resided in separate households, in order to take advantage of a promotion
through Plaintiff’s veterinary office whereby Plaintiff would provide one free
veterinary examination per household. Defendant lied, representing that their
two dogs resided in separate households, resulting in the Plaintiff being
attached by one of the dogs, while he was performing an examination of the
other dog.” (SAC, 1:23-28.) “In 2011, Defendants adopted a male dog named
‘Cole.’” (DSUMF No. 2.) “In 2014, Defendants purchased a female Labrador
Retriever named Blondie.” (DSUMF No. 9.)
Plaintiff’s SAC asserts the
following causes of action: (1) Fraud/Intentional Misrepresentation; (2) Common
Law Strict Liability; (3) Statutory Strict Liability (Civil Code §3342(a).);
and (4) Negligence.
On July 12, 2019, and December
12, 2019, Defendants Susy Salsberg; Edward Salsberg; And Ghislaine Pierrend (collectively
“Defendants”) filed their Answers to Plaintiff’s SAC. Each Defendants’
Thirteenth Affirmative Defense states “this answering Defendant contends that
he [or she] is exempt from liability under the Veterinarian’s Rule….” (see
Answers.)
On June 2, 2022, this Court
granted Plaintiff’s Motion for Summary Adjudication, ruling that the
Veterinarian’s Rule does not apply because it is undisputed that Cole remained
within his owners’ control at all relevant times. (See Minute Order, dated June
2, 2022.)
Legal Standard
If anyone engages in conduct that is a misuse of
the discovery process, the court may impose monetary sanction, issue sanction,
evidence sanction, terminating sanction, and contempt sanction. (CCP §
2023.030.) The sanctions the court may impose are such as are suitable
and necessary to enable the party seeking discovery to obtain the objects of
the discovery he seeks, but the court may not impose sanctions which are
designed not to accomplish the objects of discovery but to impose punishment. (Laguna
Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 487.) A
prerequisite to the imposition of the dismissal sanction is that the party has
willfully failed to comply with a court order. (Ibid.) 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.) A terminating sanction
issued solely because of a failure to pay a monetary sanction is never
justified. (Newland v. Sup.Ct. (1995) 40 Cal.App.4th 608, 615.)
Analysis
i.
Moving Party’s Arguments
Plaintiff contends Defendants
have repeatedly and knowingly made false statements, under oath, throughout
this litigation in written discovery, deposition testimony, and written
declarations submitted to this Court. Plaintiff argues the most significant
misrepresentations pertain to Defendant’s dog’s, Cole, history of other attacks
and Defendants’ knowledge of the dog’s history/dangerous propensities.
Plaintiff argues that the Dog has attacked and/or bitten at least three people,
including two children ages three and eight. All three attacks (including the subject
attack) caused injuries to the respective victim’s face. Cole had been muzzled
prior to the subject incident; Cole had been quarantined multiple times by
governmental agencies; and, ultimately, Cole was euthanized in 2018 after he
attacked and bit the face of an eight-year old child. Plaintiff uncovered
Cole’s 2018 attack on an eight-year old through his own investigation and was
able to confront the Defendants about this attack during deposition (after
Defendants had sworn repeatedly in that deposition that Cole had never attacked
or bitten any person before or after the subject incident). Plaintiff did not
discover that Cole had attacked and bitten a three-year old child in 2015 until
receipt of an “Animal Bite Report” from the City of Los Angeles Public Health
Department in preparation for trial in this matter. (Rosensweig Decl., Ex.
A.)
Due to these
misrepresentations, Plaintiff argues that Defendant has made repeated and
intentional misrepresentations in sworn testimony and attempted to conceal
relevant evidence.
ii. Defendants’ Opposition
Defendant
argues Terminating sanctions are an extraordinary measure. The Motion was filed
two (2) days before the September 13, 2023 Final Status Conference (“FSC”). The
Defendant’s argue this Motion is simply Plaintiff’s attempt to take away the
Defendants’ rights to a jury trial through a meritless and an unwarranted
request for terminating sanctions. Defendant also argues that there were no
Court orders relating to any issues with Defendants’ responses to plaintiff’s
written discovery, document productions, or deposition testimonies. Yet,
plaintiff’s Motion accuses Defendants and their counsel of such abusive
litigation practices and misuse of the discovery process without ever once
informing them of any deficiencies or seeking any court orders relating to the
same.
iii. Plaintiff’s Reply
Plaintiff argues that (1) Defendants
do not deny withholding responsive documents regarding these attacks from
Plaintiff; (2) Defendants have made no showing that any of their alleged
misrepresentations were truthful; (3) Defendants have made no showing that they
have taken any action to correct these misrepresentations and omissions by,
e.g., identifying witnesses to the attacks or permitting discovery into the
attacks; and (4) Defendants do not deny agreeing to stipulate to the
authenticity and admissibility of the 2015 Animal Bite Report only to renege on
the eve of trial to gain a strategic advantage.
The Court finds Defendants’
argument unpersuasive that there were no Court orders relating to any issues
with Defendants’ responses to plaintiff’s discovery requests. Any such motion would have had to occur prior
to the close of discovery. Defendants
did not share the documentation about the 2015 attack and Plaintiff did not
discover the report until after the discovery period had ended and thus
Plaintiff would have been incapable of a motion to compel the written
discovery. Moreover, Defendants were not
forthcoming in responding to discovery requests regarding the previous
incidents with the dog. Therefore,
Plaintiff was unaware of the fact that further discovery was needed. (See
Rosensweig Supp Decl., ¶ 8, Ex. 1.)
The Court is also unpersuaded
by Defendants’ contentions about the 2018 incident. The Court recognizes that
during her deposition Mrs. Salsberg testified that the 2018 incident occurred
and apologized and explained that she is an elderly woman, that there are
probably certain things she would not recall as it’s been so many years, that
she forgets things, that she does not have the best memory, that she was in
poor health, etc. (Depo. of S. Salsberg, 14:9-11, 44:19-45:6, 45:14-17,
45:25-47:1, 48:15-49:1, 91:3-5.) Still,
the Court finds the failure to disclose the 2018 incident troubling considering
the years of litigation involving numerous discovery requests, and especially since
the 2018 incident resulted in ultimately euthanizing the family pet. It is difficult to believe the Defendants
would not remember the incident that led to euthanizing the dog.
Defendants responded to the
discovery that misled plaintiff to believe that no other incidents involving
the dogs had occurred. Defendants argue
the 2015 incident was not an attack. The
Court declines to categorize it as an attack as that is a question for the
jury. However, the 2018 incident is
without question. It caused injuries that caused a child severe injuries and
lead to the euthanasia.
Accordingly, the Court finds
that there were, at minimum, some misuse of the discovery process, which
warrants sanctions.
Sanctions
A trial court may sanction any
party for engaging in misuse of the discovery process by issuing monetary
sanctions, issue sanctions, evidence sanctions, terminating sanctions, or
contempt sanctions. (CCP §§ 2023.030(a)-(e).)
“A decision to order
terminating sanctions should not be made lightly. But where 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.” (Mileikowsky v. Tenet
Healthsystem (2005) 128 Cal.App.4th 262, 279-280.)
While the Court agrees
Sanctions are available in this circumstance, the Court is reluctant to grant
terminating sanctions. However, agrees
that monetary sanctions should be awarded.
Plaintiff requests that the
Court order Defendants and their attorney to pay sanctions to Plaintiff in the
amount of $11,250.00 which represents the attorneys' fees and costs incurred to
bring this motion, or such other amount as the Court deems appropriate.
(Rosensweig Decl., ¶ 17.)
Plaintiff’s Counsel attests
that he has spent 18.5 hours on the instant motion (calculated as 18.5 hours
preparing the motion, 5.5 hours reviewing the opposition and preparing a reply,
and an hour attending the hearing for the matter at a rate of 450.00 per hour.)
The Court finds the
request reasonable. The Court awards $11,250
in attorney’s fees, plus costs.
Plaintiff also requests
that the Court continue the trial date and reopen discovery as they were at a
severe disadvantage by not being made aware of the 2015 and 2018 incidents. Plaintiff was able to depose the mother of
the child in 2015 incident on May 8, 2023. (See Depo. of J. Newton.) Decisions
regarding the evidentiary objections to the deposition and the Animal Bite
report will occur at a later stage. On the other hand, during the deposition of
Defendant Salsberg, she did offer that the dog was well-behaved despite
litigation and resolution of the 2018 incident until Plaintiff’s Counsel made
it clear he was aware of the 2018 incident. (Rosensweig Decl., Ex. H, 39:21 –
42:19.) Due to the apparent attempts to hide relevant facts, the Court is
persuaded that it should continue the trial and allow for discovery to be
reopened so that Plaintiff’s counsel may depose relevant witnesses.
However, the discovery
is limited to the issues relating to the 2015 and 2018 incidents. The trial must begin prior to December 18,
2023 (5 years plus 180 days.)
Conclusion
Motion for terminating sanctions is DENIED.
Motion for monetary sanctions, in the alternative, are
awarded for the reduced total amount of $11,250 payable within thirty (30)
days.
Motion for sanctions, in the alternative, to continue the
trial date and allow for reopening of the discovery period is GRANTED.
Moving party to give notice.