Judge: Loren G. Freestone, Case: 37-2021-00045465-CU-PO-CTL, Date: 2024-05-10 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 09, 2024

05/10/2024  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  PI/PD/WD - Other Discovery Hearing 37-2021-00045465-CU-PO-CTL JANE DOE #1 VS GOVICHY.COM [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Plaintiffs Jane Doe #1 (EQY) and Jane Doe #2 (EQN)'s motion for sanctions against Defendant Govichy.com and its counsel is DENIED.

'[T]rial courts may award attorney fees as a sanction for misconduct only when authorized by statute or an agreement of the parties.' (City of Los Angeles v. PricewaterhouseCoopers, LLC (2022) 84 Cal.App.5th 466, 510, review granted Jan. 25, 2023, No. S277211.) Plaintiffs move for sanctions under Code of Civil Procedure sections 128.5 and 2023.030.

Section 128.5 Section 128.5 empowers a court to sanction a party for 'actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.' (Code Civ. Proc., § 128.5, subd. (a).) A party could previously be sanctioned under section 128.5 for misconduct regarding the scheduling of depositions. (See, e.g., Tenderloin Housing Clinic, Inc. v. Sparks (1992) 8 Cal.App.4th 299, 304–305 [counsel purposefully set depositions while opposing counsel was on vacation and refused to change or modify the dates].) However, in 2014 the legislature amended section 128.5 such that it would no longer apply to alleged misconduct in connection with discovery. (See Coe Civ. Proc., § 128.5, subd. (f); see also Stats. 2014, ch. 425, § 1.) In 2017, the legislature amended section 128.5 to its present form to 'clarify that sanctions for actions and tactics under section 128.5 must be in subjective bad faith.' (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 984 (2017–2018 Reg. Sess.) as amended Apr. 20, 2017); accord Sen. Com. on Judiciary, Analysis of Assem. Bill No. 984 (2017–2018 Reg. Sess.) as amended June 19, 2017.) Here, Plaintiffs seeks sanctions for Govichy's conduct regarding the scheduling of their depositions and the depositions of its employees. Such conduct is not sanctionable under section 128.5. Based on the evidence presented, the court is also unable to conclude that Govichy's conduct was done in subjective bad faith.

Section 2023.030 Calendar No.: Event ID:  TENTATIVE RULINGS

3075086  39 CASE NUMBER: CASE TITLE:  JANE DOE #1 VS GOVICHY.COM [IMAGED]  37-2021-00045465-CU-PO-CTL Section 2023.030 'describes the types of sanctions available under the Discovery Act when another provision authorizes a particular sanction. Section 2023.030 does not independently authorize the court to impose sanctions for discovery misconduct.' (PricewaterhouseCoopers, supra, 84 Cal.App.5th at pp.

502–504.) A request for a discovery sanction 'shall, in the notice of motion, . . . specify the type of sanction sought.' (Code Civ. Proc., § 2023.040.) Plaintiffs did not cite a specific provision in the Discovery Act authorizing sanctions for Govichy's alleged misconduct. Nor did its notice of motion specify what type of sanction it was requesting. Based on the evidence presented, Govichy was also substantially justified.

Conclusion The motion for sanctions is denied. This ruling is without prejudice in the event Govichy cancels the May 29-30, 2024 depositions of Plaintiffs.

Govichy's request for sanctions against Plaintiffs is also denied.

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