Judge Mark E. Windham, Case Number: 18STLC12069, Date: 2023-07-11 Tentative Ruling

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Bander v. Bills, et al.

MOTION FOR TERMINATING, EVIDENTIARY, ISSUE, OR MONETARY SANCTIONS

(CCP § 2023.010, et seq.)

Plaintiffs Joel Bander and Felicia Bander’s Motion to Strike Defendants’ Answers, and the Cross-Complaint Of W.I.R. Holdings, LLC, or in the alternative, for Issue and/or Evidence Sanctions; and for Monetary Sanctions is DENIED.

Plaintiffs Joel Bander and Felicia Bander (“Plaintiffs”) filed the instant action for failure to return their security deposit and related claims against Defendants Ronald Bills (“Defendant Bills”), Howard Management Group (“Defendant HMG”), Daniel Sloan (“Defendant Sloan”), Gonzalo Olmedo dba Olmedo’s Construction (“Defendant Olmedo”) and Business Alliance Insurance Company (“Defendant BAIC”) on September 24, 2018. The First Amended Complaint was filed on October 22, 2019.

Defendant WIR Holdings, LLC (“Defendant WIR”), added as a doe defendant, filed a Cross-Complaint against Plaintiffs on October 14, 2020. The Cross-Complaint alleges that Plaintiffs breached their lease agreement by damaging the concrete driveway of the premises (“the Premises”) in an amount greater than covered by their security deposit.

On December 21, 2022, the Court found that exceptional circumstances exist in this action, which warrant the appointment of a discovery referee. (Minute Order, 12/21/22.) The discovery referee was appointed on January 17, 2023. (Minute Order, 01/17/23.) On August 29, 2023, the Court adopted the discovery referee’s recommendations, which were as follows:

2. Defendants shall select, at its expense, a qualified expert to extract all Electronically Stored Information (ESI) that pertains to:

All ESI shall be produced and provided to Plaintiffs on a flash drive, disc, or other medium that will preserve its “native form.”

3. Pursuant to stipulation, alternatively, Defendants shall allow a qualified expert selected by Plaintiffs, at Plaintiff’s expense, to access the computer system for

the relevant ESI. Any Defense expert may be present, at Defendant’s expense, to

monitor and to provide adequate safeguards to protect the proprietary integrity and privacy rights of all parties and third parties whose information may be stored on such computers during the inspection.

(Notice of Referee’s Recommendations, filed 05/30/23; Minute Order, 08/29/23.) On September 27, 2023, Plaintiffs filed the instant Motion to Strike Defendants’ Answers, and the Cross-Complaint Of W.I.R. Holdings, LLC, or in the alternative, for Issue and/or Evidence Sanctions; and for Monetary Sanctions. Defendants filed an opposition on November 17, 2023 and Plaintiffs replied with evidentiary objections on November 27, 2023.

Where a party willfully disobeys a discovery order, courts have the discretion to impose terminating, issue, evidence or monetary sanctions. (Code Civ. Proc., §§ 2023.010, subds. (d), (g); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) Contrary to the opposition argument, Plaintiffs’ motion is supported by authority under Code of Civil Procedure section 2023.030, which states in relevant part: “The court may impose 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.

(Code Civ. Proc., § 2023.030, subd. (d).) The court should look to the totality of the circumstances in determining whether terminating sanctions are appropriate. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) “[A] penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.” (Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.)

Plaintiffs’ evidentiary objection to the declaration of David Bower at paragraph 37 and Exh. D is sustained. Additionally, the Court finds that the instant Motion is not barred by the provisions of Code of Civil Procedure sections 2024.020 and 2024.050, as Defendants argue, which pertain to the right to complete discovery and to have discovery motions heard, a certain amount of time before trial. (Code Civ. Proc., § 2024.020.) Sanctions motions are not subject to these deadlines. (Department of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 197.)

Plaintiffs have not shown that Defendants did not comply with the recommendations of the discovery referee to hire a qualified expert to extract all the ESI that pertains to the aforementioned documents. Rather, it is Plaintiffs’ contention that the ESI extracted was incomplete because it did not include all the creation dates and was not initially verified. The lack of initial verifications by Defendants of Defendants’ expert’s ESI report, however, was later corrected. (Motion, Exhs. K-M.) Regarding Plaintiffs’ contention that the ESI was incomplete, the Court finds that Defendants fully complied with the discovery referee’s recommendations regarding the use of a qualified expert for this extraction, a process to which the parties agreed. (Opp., Bower Decl., ¶¶26-31 and Exhs. A-C.) A report was sent to Plaintiffs and the discovery referee on June 6, 2023. (Id. at ¶31 and Exh. C.) There was no order, nor other agreement between the parties, that should Plaintiffs be unsatisfied with the production of Defendants’ ESI expert that Plaintiffs’ own ESI expert would then conduct their own examination. Plaintiffs’ contention that Defendants violated the discovery orders by failing to allow access by Plaintiffs’ expert, therefore, is without merit. In fact, following a meet and confer regarding the June 6, 2023 report from Defendants’ ESI expert, Defendants asked their expert to again provide a report regarding the ESI for the delineated documents, at additional cost. (Id. at ¶¶32-36.)

Therefore, the Court finds no violation of the discovery orders to produce ESI pertaining to the estimate from Defendant Olmedo Construction and emails from Defendants Bills, Olmedo, and Sloan.

Plaintiffs Joel Bander and Felicia Bander’s Motion to Strike Defendants’ Answers, and the Cross-Complaint Of W.I.R. Holdings, LLC, or in the alternative, for Issue and/or