Judge: Mark H. Epstein, Case: 20SMCV00596, Date: 2022-10-27 Tentative Ruling

Case Number: 20SMCV00596    Hearing Date: October 27, 2022    Dept: R

Plaintiff Virk sues defendants for an alleged breach of the CC&Rs relating to his claim that defendants took an improper position supporting one side to a litigation dispute between Virk and a third party and went so far as to interfere with the mails.  There are other aspects of the complaint as well. 

Currently before the Court is defendants’ request for terminating sanctions.  The terminating sanctions motion is the sort of umbrella here, but there are also additional motions to compel.  

Frankly, this case is turning into a procedural quagmire.  And it is almost impossible to have a motion without some form of dispute about what was served and when.  The Court has addressed these service issues in the past, but apparently to little avail. 

There is also a history to this case.  Last year, there was another discovery dispute.  In the course of resolving that dispute, the Court concluded that plaintiff Virk had committed perjury.  Among other things, he claimed that he was out of town at the time defendants claimed that he was served, but video footage showed that he was present.  There were other problems as well.  To be clear, Virk disputes this conclusion—he asserts that his statements under penalty of perjury were all true and correct.  The Court, however, disagrees and found Virk to have lied under oath.  Plaintiff was sanctioned for that behavior.  The Court must candidly admit that this history colors its thinking here and the weight it puts on the evidence Virk submits. 

One of the major problems here is taking Virk’s deposition.  Virk has stated that he has been in deposition now for 12 hours—more than the 7 that the Code allows by right.  The extra time was itself the result of a motion by the defense.  After the seven hours expired, Virk walked out, requiring a motion to compel by the defense.  Although the Court granted defendants’ motion, the Court also found that Virk’s actions had substantial justification in light of the Code.  It was not that the Court concluded that 7 hours was sufficient—it was not.  But the Court did conclude that Virk’s view that he did not need to remain once the seven hours had expired was consistent with the statutory language absent an order to the contrary. 

The third day of deposition went forward, and it was a circus.  Virk and defense counsel were sparring on the record and the deposition was just a mess.  Defendants suggest that Virk was running out the clock, insisting on giving narrative answers to yes or no types of question.  Virk disagrees.  The Court has reviewed the transcripts and believes that defendants have the better of it.  Indeed, the Court Reporter warned the parties that the transcript would be useless in light of the way it was going.  Things got bad enough that at one point Virk told defense counsel to “shut up” so that he could give his narrative responses.  He would add things to the answer going far beyond the call of the question.  One example is where defense counsel asked Virk to list the paragraph numbers of the CC&Rs that he claimed had been violated.  That would seem to be something Virk ought to be able to do readily and quickly; after all, it is the subject of his complaint.  Yet he did not.  He would go page by page through the CC&Rs and he would not just list the paragraph number (which is what the question asked him to do) but provide further statements.  The Court’s conclusion from reading the transcript is that Virk was indeed running out the clock.  Of course, that said, a better way to get a definitive list is through an interrogatory.  Lists like this are exactly what interrogatories are for—it is much more useful than the typical interrogatory asking a party to recite “all facts” that support its position.  Even so, asking at a deposition is not improper, and the answer is a list.  That said, there were also questions asked that called for longer responses, and defense counsel cannot be heard to complain where Virk takes that ball and runs with it. 

Sadly, there is no easy way to control a deposition.  The Court is not going to preside over it; and without some presiding officer, this behavior will simply repeat itself.  One answer is for the Court to give defendants a very large number of additional hours.  That ought to be sufficient even if Virk continues to try and run out the clock, and to have it go day to day—starting on a day of defendants’ choosing on not less than 10 court days’ notice—until complete.  That is expensive for the defense, though, and seems to punish defendants (at least in part) for plaintiff’s misconduct.  Another solution would be to appoint a discovery referee to preside over the continued deposition and limit the continued deposition to four hours absent a recommendation from the referee (approved by the Court) for more time.  That is the Court’s preferred method of dealing with it, and the Court will discuss with the parties whether they will agree to this option or a short schedule to allow any objecting party to submit papers to support the objection.  The referee would be chosen by either the parties’ agreement or by allowing each party to submit the names of four potential referees.  The Court would direct that all nominees be members of the bar and have no affiliation with this case or the parties or counsel to the case.  When submitting the nominees to the other party, the submission will include any time that the party or counsel used that person’s services within the last three years.  Each party can strike one name from the other’s list.  If the parties cannot agree on a referee, then the remaining six nominees will be presented to the Court in alphabetical order with their resumes attached (including their hourly rate).  The submission will be a joint submission and there will be no indication as to which party nominated with people.  The Court will choose from that list. 

The Court is aware that defendants’ proposed solution is to terminate the case, that is, to dismiss it with prejudice.  The Court is reluctant to do so, notwithstanding the discovery issues, at least with regard to the deposition.  While plaintiff’s conduct has not been appropriate at the deposition, the Court cannot say that no lesser sanction will work or that the conduct is so severe and willful as to warrant terminating sanctions.  The Court also notes that there have been at least some issues going the other way. 

The written responses are a little bit different.  Plaintiff claims he served the responses on October 7 and he attaches USPS tracking information.  However, as was the case a previous time he made the argument, a tracking number is not all that informative.  It shows that there was something sent to some address at some point that generated a tracking number.  But that is hardly dispositive.  Even a receipt only shows (at best) the address to which the item was delivered and the date and time.  That is a lot, but (critically) it does not establish what was in the package.  That is important because in an earlier motion in this case plaintiff contended that he had served discovery papers and his proof was tracking information.  However, other evidence established (sufficiently in the Court’s view) that the items in the package were not what plaintiff claimed them to be.  And Virk does not (this time) even declare that the responses were in the envelope.  The failure to provide the discovery per the Court’s order is a different matter than the deposition.  That smacks of a more deliberate and willful failure and one that is harder to prevent going forward without some additional sanction.  The Court will discuss this further at the hearing.  

As to the motions to compel (as opposed to the requests for sanctions), the Court is inclined to GRANT the motions as prayed as they relate to written discovery.  Plaintiff is to comply, under oath, within 30 days.  And the Court further orders plaintiff to respond (when the deposition resumes) as to the mortgage status.  While under many circumstances the Court would agree with plaintiff that this information is not relevant to the subject matter of the litigation and is not calculated to lead to the discovery of admissible evidence, or at least that whatever value it might have is outweighed by plaintiff’s privacy concerns, it was plaintiff, not defendants, who injected the issue into these proceedings.  He claimed that the mortgage was a basis for his damages.  Plaintiff, having opened that door, cannot be heard to complain that defendants are walking through it. 

As to monetary sanctions, the Court is inclined to grant the motion as to the requests for production in the amount of $535.77 and the motion to compel answers to the deposition questions in the amount of $1732.77.  The Court does not see a specific request tied to the other motions.  The request for an additional $999.12 is denied.  Defendants filed an omnibus reply and it is not clear how much time was spent on which aspects of what.  Thus, sanctions are awarded in the total amount of $2268.54, payable within 30 days. 

On a more macro level, this case needs to proceed in a more orderly fashion.  The Court has stated before and it will state again.  When something is served, even electronically, the serving party ought to send an email asking for confirmation of receipt.  A party getting that email has a duty to respond immediately—that day or the next.  If there is no response, the serving party will know there is an issue.  If the response is that the receiving party did not get it, then the parties can have it re-sent so that service is not a problem.  If there is confirmation, then there will be no future problems.  The parties ought to be thoughtful regarding requests for admission and interrogatories.  Requests for admission where a party knows that the request will be denied are rarely really of any use.  Interrogatories asking for narratives are almost never really helpful.  Document requests are useful, but they ought to be thoughtful and tailored.  This case has been pending for over 2.5 years.  True, trial is still some time away.  But the parties ought to be honing in on the end of discovery.