Judge: Michael P. Linfield, Case: 20STCV07655, Date: 2023-05-03 Tentative Ruling

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Case Number: 20STCV07655    Hearing Date: May 3, 2023    Dept: 34

SUBJECT:         Motion for Evidentiary Sanctions Pursuant to Code of Civil Procedure § 2023.030 [and] Request for [Monetary] Sanctions

Moving Party:  Defendants/Cross-Defendants Compass California, Inc., Shane Douglas Markland, Anthony J. Stellini, and Sherri Ann Rogers

Resp. Party:    Plaintiff Zohar Management, LLC

Defendants/Cross-Defendants’ Motion is DENIED.

BACKGROUND:

On February 24, 2020, Plaintiff Zohar Management, LLC filed its Complaint against Defendants Holloway Drive, LLC, Lubov Azria, Compass California, Inc., Shane Douglas Markland, Anthony J. Stellini, Sherri Ann Rogers, Utopia Development, Inc., and Daniel Angelo Moizel. This action arises out of allegations of the breach of a real estate contract regarding four residential units located at 8451 Carlton Way, Los Angeles, CA 90069.

On June 26, 2020, by request of Plaintiff, the Clerk’s Office dismissed without prejudice Defendants Daniel Angelo Moizel and Utopia Development, Inc.

On June 2, 2021, Plaintiff amended its Complaint to substitute Doe 1 for Compass, Inc.

On August 9, 2021, Plaintiff filed its First Amended Complaint.

On October 27, 2021, Defendants/Cross-Complainants Holloway Drive, LLC and Lubov Azria filed their Cross-Complaint against Defendants/Cross-Defendants Compass California, Inc., Shane Douglas Markland, Anthony J. Stellini, and Sherri Ann Rogers.

On November 1, 2021, Defendants/Cross-Complainants filed their Verified Answer to Plaintiff’s First Amended Complaint.

On November 3, 2021, Defendants/Cross-Defendants Compass California, Inc., Shane Douglas Markland, Anthony J. Stellini, and Sherri Ann Rogers filed their Verified Answer to Plaintiff’s First Amended Complaint.

On November 30, 2021, Defendants/Cross-Defendants filed their Answer to Cross-Complainants’ Cross-Complaint.

        On March 21, 2023, Defendants/Cross-Defendants filed their Motion for Evidentiary Sanctions Pursuant to Code of Civil Procedure § 2023.030 [and] Request for [Monetary] Sanctions (“Motion”).

        On April 10, 2023, Plaintiff filed its Opposition.

        On April 17, 2023, Defendants/Cross-Defendants filed their Reply.

ANALYSIS:

I.           Legal Standard

Code of Civil Procedure section 2023.030 gives the court the discretion to impose sanctions against anyone engaging in a misuse of the discovery process. A court may impose terminating sanctions by striking pleadings of the party engaged in misuse of discovery or entering default judgment. (Code Civ. Proc., § 2023.030(d).) A violation of a discovery order is sufficient for the imposition of terminating sanctions. (Collison & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1620.) Terminating sanctions are appropriate when a party persists in disobeying the court's orders. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 795–96.) 

A terminating sanction is a "drastic measure which should be employed with caution." (Id. at p. 793.) "A decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction." (Mileikowsky v. Tenet Healthsystem (2005) 128 Ca1.App.4th 262, 279-280.)  

While the court has discretion to impose terminating sanctions, these sanctions "should be appropriate to the dereliction and should not exceed that which is required to protect the interests of the party entitled to but denied discovery." (Deyo, supra, 84 Cal.App.3d at p. 793.) "[A] court is empowered to apply the ultimate sanction against a litigant who persists in the outright refusal to comply with his discovery obligations." (Id.) Discovery sanctions are not to be imposed for punishment, but instead are used to encourage fair disclosure of discovery to prevent unfairness resulting for the lack of information. (See Midwife v. Bernal (1988) 203 Cal.App.3d 57, 64 [superseded on other grounds as stated in Kohan v. Cohan (1991) 229 Cal.App.3d 967, 9711.) 

"A trial court has broad discretion to impose discovery sanctions, but two facts are generally prerequisite to the imposition of nonmonetary sanctions . . . (1) absent unusual circumstances, there must be a failure to comply with a court order, and (2) the failure must be willful." (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327; but see Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1291 ["willfulness is no longer a requirement for the imposition of discovery sanctions."].) 

II.        Discussion

A.      The Parties’ Arguments

Defendants/Cross-Defendants move the Court to issue: (1) evidentiary sanctions that bar Plaintiff from introducing evidence that should have been produced in response to Requests for Production, Set Two; (2) terminating sanctions that dismiss the action filed by Plaintiff; and (3) monetary sanctions against Plaintiff and Plaintiff’s Counsel. (Motion, p. 9:8–15.) Defendants/Cross-Defendants argue that these sanctions are appropriate because of Plaintiff’s alleged misuse of the discovery process. (Id. at pp. 6:5–6, 7:11–12, 8:11–12.)

        Plaintiff opposes the Motion, arguing: (1) that the Motion is untimely; (2) that the Motion is without merit because Plaintiff substantially complied with its discovery obligations; (3) that the meet and confer process was delayed because of the untimely death of a witness’s brother, Plaintiff’s Counsel falling ill with COVID-19, and the demands of Defendants/Cross-Defendants’ recently-adjudicated Motion for Summary Judgment; and (4) that unpaid monetary sanctions do not warrant the imposition of evidentiary or terminating sanctions. (Opposition, pp. 3:2–5, 4:20–23, 10:1–5, 11:10–12.)

        In their Reply, Defendants/Cross-Defendants argue: (1) that Plaintiff did not respond to Requests for Production, Set Two in violation of the Court’s Order; (2) that Plaintiff did not refute that evidentiary sanctions are warranted; (3) that Plaintiff did not refute that terminating sanctions are warranted; (4) that Plaintiff did not refute that monetary sanctions are warranted; and (5) that the Motion is timely. (Reply, pp. 2:20–21, 3:17–18, 4:4–5, 5:1–2, 5:12.)

B.      Timeliness

Motions concerning discovery must be heard on or before the 15th day before the date initially set for trial, and a continuance or postponement of the trial date does not automatically operate to reopen discovery proceedings without a motion or other court ruling so ordering. (Code Civ. Proc., §§ 2024.020, subds. (a)–(b).)

The Court last reset the discovery deadlines by Order dated July 5, 2022, which moved discovery deadlines to accord with the then-trial date of May 1, 2023. That made the deadline to hear discovery motions April 14, 2023 because 15 days before May 1, 2023 was Sunday, April 16, 2023. Although the Court recently postponed trial to August 7, 2023, no extension of the discovery deadline was provided. (Minute Order dated March 29, 2023, pp. 21–22.) Notably, the Ex Parte Application dated March 28, 2023, upon which that extension was granted, did not request an extension of discovery deadlines (except for an extension of expert witness depositions, which was ultimately not included in the Court’s Order).

The hearing on this Motion is scheduled for May 3, 2023. Thus, the Motion is untimely.

“On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2024.050, subd. (a).)

The Motion at hand involves discovery sanctions, and Defendants/Cross-Defendants have not moved for leave to file this late Motion. Indeed, Defendants/Cross-Defendants continue to argue that the Motion is timely. (Reply, p. 5:12–22.) The Court declines to exercise its discretion here to grant leave. (Accord Pelton-Shepherd Indus., Inc. v. Delta Packaging Prods., Inc. (2008) 165 Cal.App.4th 1568, 1585–88.)

        As the Court is denying this motion on procedural grounds, the Court does not reach the merits of the Motion.

III.     Conclusion

Defendants/Cross-Defendants’ Motion is DENIED.