TENTATIVE RULING

Defendant T-Mobile West LLC’s Motion for Sanctions is DENIED.

Defendant T-Mobile West LLC to give notice.

REASONING

Defendant T-Mobile West LLC (“Defendant”) moves the Court for evidentiary and monetary sanctions against Plaintiff The Folb Partnership, GP (“Plaintiff”), specifically seeking an order excluding any evidence Plaintiff seeks to introduce related to its unauthorized inspections of Defendant’s leased premises. Defendant also seeks monetary sanctions in the amount of $12,665, representing its costs and fees incurred in bringing this motion. Defendant states that during expert discovery taken in September 2023, including during Plaintiff’s experts’ depositions taken on September 13 and 15, 2023, Defendant learned that Plaintiff and its affiliated entities, 3500 Overland Owners, LLC and Paramount Contractors & Developers, Inc. (collectively “Cross-Defendants”), as well as their counsel, experts, and agents had improperly accessed Defendant’s leased premises on several occasions, including June 12, 2020, February 23, 2022, October 31, 2022, January 4, 2023, March 2, 2023, and May 25, 2023 without providing notice to or seeking authorization from Defendant. (Mot., Leipzig Decl., ¶¶ 7-8.) Plaintiff argues that Defendant has known of the inspections, sanctions would preclude Plaintiff’s ability to prove its case, and Defendant does not have a right of exclusive possession of the leased space, as it was given only the right to operate a cell tower.

If a party engages in the misuse of the discovery process, the court may impose sanctions including terminating, issue, evidence, and monetary sanctions. (See Code Civ. Proc., § 2023.030, subds. (b)-(d).) “The trial court has broad discretion in selecting discovery sanctions, subject to reversal only for abuse.” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) “[T]wo facts are absolutely prerequisite to imposition of the sanction: (1) there must be a failure to comply and (2) the failure must be willful.” (Liberty Mut. Fire Ins. Co. v. LcL Adm’rs, Inc. (2008) 163 Cal.App.4th 1093, 1102, ellipsis omitted.)

The Court finds that sanctions are not proper here. First, Plaintiff is the owner of the property at 3500 Overland Avenue, and while Defendant has leased a portion of the rooftop for a cell tower, Plaintiff was not a trespasser as a general matter because it owns the remainder of the rooftop; additionally, there is no evidence that Plaintiff damaged the cell tower in some way, Plaintiff did not interfere with Defendant’s ability to use the cell tower, and there is no other basis to conclude that Plaintiff was unlawfully present at the property. Further, assuming arguendo that Plaintiff improperly accessed and investigated the premises, Defendant fails to make a showing of prejudice. Terminating, issue, and evidence sanctions are most often imposed when a party engages in discovery abuses which prejudice the opposing party’s ability to present their case, e.g., a party engaged in spoliation of evidence, refused to meaningfully participate in deposition, or failed to provide code-compliant discovery responses. While prejudice is not a required showing before sanctions may be imposed, the lack of prejudice informs the Court’s ruling which would substantially hinder Plaintiff’s ability to succeed at trial. Here, Defendant seeks sanctions where Plaintiff merely violated Defendant’s contractual rights under the lease to exclusive possession. There is no basis to conclude that Plaintiff’s inspections of the premises prejudiced Defendant’s ability to defend against Plaintiff’s claims. Accordingly, Defendant T-Mobile West LLC’s Motion for Sanctions is DENIED.