Judge: Mark A. Young, Case: 20STCV40792, Date: 2023-01-25 Tentative Ruling
Case Number: 20STCV40792 Hearing Date: January 25, 2023 Dept: M
CASE NAME: Rusek v. 8767
Wilshire Blvd. LP, et al.
CASE NO.: 20STCV40792
MOTION: Motion
for Sanctions
HEARING DATE: 1/25/2023
Legal
Standard
If a party fails to obey a court
order compelling it to provide a discovery response, “the court may make those
orders that are just, including the imposition of an issue sanction, an
evidence sanction, or a terminating sanction . . . In lieu of or in addition to
this sanction, the court may impose a monetary sanction . . ..” (CCP §§
2030.290(c), 2030.300(e), 2031.300(c), 2031.320(c).) Misuse of the discovery
process, which includes disobeying a court order to provide discovery, is
conduct subject to sanctions. (CCP § 2023.010(g).) Possible sanctions are:
(a) [A] monetary
sanction 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….
(b) [A]n issue
sanction ordering that designated facts shall be taken as established in
the action in accordance with the claim of the party adversely affected by the
misuse of the discovery process. The court may also impose an issue sanction by
an order prohibiting any party engaging in the misuse of the discovery process
from supporting or opposing designated claims or defenses.
(c) [A]n evidence
sanction by an order prohibiting any party engaging in the misuse of the
discovery process from introducing designated matters in evidence.
(d) [A] terminating
sanction by one of the following orders:
(1) An order
striking out the pleadings or parts of the pleadings of any party engaging in
the misuse of the discovery process.
(2) An order
staying further proceedings by that party until an order for discovery is
obeyed.
(3) An order
dismissing the action, or any part of the action, of that party.
(4) An order
rendering a judgment by default against that party.
(e) [A] contempt
sanction by an order treating the misuse of the discovery process as a contempt
of court.
(CCP § 2023.030 [emphasis added].)
The party seeking to impose
sanctions need only show the failure to obey earlier discovery orders. (Puritan
Ins. Co. v. Superior Court (1985) 171 Cal.App.3d 877, 884 [interpreting
former statute dealing with “refusal” to comply].) However, numerous cases hold
that severe sanctions (i.e., terminating or evidentiary sanctions) for failure
to comply with a court order are allowed only where the failure was willful.
(See R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th
486, 495; Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545; Biles
v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.) The burden of
proof then shifts to the party seeking to avoid sanctions to establish a
satisfactory excuse for his or her conduct. (Corns v. Miller (1986) 181
Cal.App.3d 195, 201; Williams v. Russ (2008) 167 Cal.App.4th 1215,
1227.)
Analysis
Plaintiff moves for sanctions
against Defendant 8767 Wilshire on the grounds that Defendant has engaged in
willful discovery abuse by refusing to produce documents within its
control/custody, and despite several agreements/court orders to do so.
Discovery Dispute
In February 2021, Defendant 8767
Wilshire served its responses to Plaintiff’s first round of written discovery.
(Muller Decl., ¶ 2.) Plaintiff provides that Defendant only served six
documents in response: 1) a partially-redacted copy of Defendant’s insurance
agreement with Liberty Mutual for insurance pertaining to this dispute; 2) the
April 15, 2009 general construction contract between Defendant 8767 Wilshire
and Defendant TKEC for the installation of the Subject Elevator; 3) the May 11,
2011 elevator maintenance agreement as between Defendant 8767 Wilshire and Defendant
TKEC for the routine inspection and maintenance of the Subject Elevator; 4) the
May 7, 2018 elevator maintenance agreement as between Defendant 8767 Wilshire
and 5 Star Elevator Service, Inc. for the routine inspection and maintenance of
the Subject Elevator; 5) the Conveyance Permits issued to Defendant 8767
Wilshire’s owner GEK Construction, Inc. for the Subject Elevator from 2016
through 2019; and 6) a one-page screenshot showing instances of elevator
inspection and maintenance from August 14, 2020, through February 1, 2021.
Pursuant to 5 Star’s 2018
maintenance agreement with Defendant, 5 Star contractually promised to submit
and/or maintain on Defendant’s Property detailed reports relating to its
routine inspection, maintenance, and repair work to the Subject Elevator. (5
Star Contract, ¶¶ 1.02, 2.01, 2.02, 3.04, 3.12, 4.03; Muller Decl., Ex. 1.)
On September 13, 2021, Plaintiff Rusek
served Requests for Production [Set Two] to Defendant 8767 Wilshire Blvd, L.P.
(Muller Decl., ¶ 6; Ex. 3.) Rusek asked Defendant Wilshire for copies of all
documents and communications exchanged between the building entity 8767
Wilshire and 5 Star relating to the November 2018 incident, Rusek, and the
subject elevator. Defendant 8767 Wilshire belatedly served its responses on
December 23, 2021. (Id., Ex. 4.)
On April 20, 2022, Wilshire served
its supplemental responses. The parties engaged in further meet and confer
efforts regarding the alleged deficiencies. Parties agreed that additional
supplemental responses would be served by July 8, 2022. Defendant failed to
produce supplemental responses and Plaintiff timely filed a motion to compel
further responses.
On August 12, 2022, the Court heard
and granted Plaintiff’s Motion to Compel further supplemental responses from
Defendant 8767 Wilshire as to her Requests for Production [Set Two]. The Court
ordered Defendant to serve further supplemental responses without objection
within ten (10) days of the hearing date and sanctioned Defendant $2,492.50 in
monetary sanctions, in addition to the outstanding $750.00. Defendant failed to
serve further supplemental responses to Plaintiff’s Requests for Production by
August 22, 2022. On August 23, 2022, counsel requested an additional extension to
August 26, 2022, to respond. Plaintiff did not acquiesce. Based on this
failure, Plaintiff moved for sanctions, including monetary, issue, evidentiary,
and terminating sanctions.
Sanctions
Defendant 8767 Wilshire argues that
the motion is moot because adequate responses have been served. On November 9,
2022, Defendant served its Second Supplemental Responses to Plaintiff’s
Requests for Production, Set Two addressing request numbers 113-115. (Anvari
Decl., Ex. F.) The responses indicate that Defendant has already “fully
complied” with this request seeking documents. They also deny that there has
ever been “any maintenance agreement between 8767 WILSHIRE and 5 STAR relating
to the SUBJECT ELEVATOR. Instead, as Plaintiff is fully aware, 5 STAR had a
maintenance agreement with GEK Construction. Plaintiff could easily seek any
further document relating to the SUBJECT ELEVATOR from GEK Construction
regarding the SUBJECT ELEVATOR. Yet, Plaintiff seeks to annoy and harass 8767
WILSHIRE by forcing her own shortcomings upon Responding Party in utilizing
discovery tools at her disposal upon Responding Party.” As indicated by the
response, no further records were produced.
Defendant has failed to comply with
this court’s discovery order. Defendant did not serve timely responses. Defendant
admits that it has failed to produce any service records whatsoever for any
service performed between March 27, 2019, and August 13, 2020, or explain their
absence. Moreover, as set forth below,
Defendant’s justifications for this failure to produce are shockingly inadequate.
Nor does this statement comply with
Code of Civil Procedure section 2031.230, beyond the implication that Defendant
has no control over GEK Construction’s records. To the contrary, Plaintiff
demonstrates that Defendant does have control over GEK Construction’s
records. On January 6, 2023, Plaintiff
deposed Defendant’s Person Most Knowledgeable (PMK) Stephanie Kalina (“Kalina”)
on various topics relating to this case, including but not limited to the location
of the requested elevator maintenance records and Defendant’s efforts to search
for and produce those records to Plaintiff as ordered by this Court. (Supp.
Muller Decl., ¶ 5.) Defendant designated Kalina as its PMK, the same individual
who has verified all of Defendant’s written discovery responses, including the allegedly
“compliant” Supplemental Responses attached to Defendant’s Opposition. (Anvari
Decl., Ex. E.) At deposition, Kalina testified that any records in the custody,
or control of GEK Construction were also in the possession, custody, and/or
control of Kalina and Defendant 8767 Wilshire because the two entities are part
of the same “family business.” (Supp. Muller Decl., ¶ 5.) Kalina also testified that GEK Construction
and Defendant 8767 Wilshire share offices at 99 La Cienega Blvd, Suite 300 in Beverly
Hills. (Depo 53:2-6, 54:23-55:18.) Kalina testified that records relating to
8767 Wilshire are kept at GEK Construction’s office at 99 La Cienega. (Id. at
55:1-3.) Kalina testified that she personally had access to Defendant 8767
Wilshire’s and GEK Construction’s records and could search them for documents
responsive to Plaintiff’s Requests for Production whenever she desired. (Id.) Thus,
Defendant’s new claim that the documents are not in its possession or control
is frivolous and demonstrably false, since 8767 Wilshire’s PMK has access to
GEK Construction’s records. Plaintiff’s
description of Defendant’s conduct being an “ongoing dilatory shell game”
appears apt.
This evidence demonstrates that
Defendant has engaged in willful discovery abuse. Given that the monetary
sanctions already imposed have had little effect on Defendant, additional monetary
and non-monetary sanctions are warranted.
This case would be ripe for issue or evidentiary sanctions, however, counsel
did not supply a separate statement as required by California Rules of Court,
rule 3.1345(a)(7). Thus, the only remaining
options are terminating sanctions or monetary sanctions. Monetary sanctions would have to be an amount
that would serve to compensate Plaintiff for having to bring this motion, and
also deter such conduct in the future.
Sanctions would be imposed against both Defendant and Defendant’s
counsel, and $10,000 appears to be reasonable under all the circumstances.