Judge Monica Bachner, Case 19STCV11404 2023-03-24 Tentative Ruling

Judge: Monica Bachner, Case: 19STCV11404, Date: 2023-03-24 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time. See, e.g., CRC Rule 324(b). All parties are otherwise encouraged to appear by Court Call for all matters.

Case Number: 19STCV11404 Hearing Date: March 24, 2023 Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

BIG BALLER BRAND, et al.

vs.

GREGORY ALAN FOSTER

Case No.: 19STCV11404

Hearing Date: March 24, 2023

Defendant Gregory Alan Foster’s motion for monetary sanctions against Plaintiff and Ball Cross-Defendants for their failure to comply with the Court’s April 11, 2022, Order is granted in the amount of $7,261.00.

Defendant’s request for negative inferences. is granted as described below.

Defendant’s request for contempt sanctions is denied.

Defendant’s request for terminating sanctions, inference sanctions and evidentiary sanctions are denied.

Defendant and Cross-Complainant Gregory Alan Foster (“Foster”) moves to (1) set an order to show cause re contempt against Plaintiff and Cross-Defendant Big Baller Brand, LLC (“BBB”), and Cross-Defendants Lavar Anderson Ball (“Lavar”), Ball Sports Group, Inc. (“BSG”), and Big Baller Brand, Inc. (“BBB Inc.”) (collectively, “Plaintiff and Ball Cross-Defendants”) for their willful failure to comply with this Court’s April 11, 2022 Order (“Order”); (2) (i) request terminating sanctions against Ball Cross-Defendants dismissing BBB’s Complaint and dismissing Ball Cross-Defendants’ answer to Defendant’s Cross-Complaint, (ii) or in the alternative evidentiary sanctions, (iii) and evidentiary sanctions excluding Ball Cross-Defendants from being able to present any of the documents as part of its case in chief and preventing Ball Cross-Defendants from presenting any of the documents; (3) a negative inference for Ball Cross-Defendants’ refusal to produce the corporate and financial documents pursuant to the Court’s Order that the documents support Defendant’s claims and do not support BBB’s claims or the Ball Cross-Defendants’ defenses; (4) a court order for monetary sanctions against Ball Cross-Defendants and their attorney of record, jointly and severally in the amount of $7,261.00. (Motion, pgs. 5-6; C.C.P. §§177.5, 1212, 2023.030(a), (b), (d), (e); Evid. Code §413.)

Background

On April 11, 2022, the parties appeared at an Informal Discovery Conference (“IDC”), and the Court issued an Order reflecting the parties’ agreement as follows: (1) documents responsive to requests for production (“RFP”), as listed in Foster’s 4/6/22 IDC Statement, will be produced by April 30, 2022; and (2) by April 30, 2022, Plaintiff and Ball Cross-Defendants’ counsel will agree to deposition dates for Plaintiff and Ball Cross-Defendants. (4/11/22 Minute Order.) The Order notes the parties’ agreement has the force and effect of a Court order. Ball Cross-Defendants failed to produce any documents and failed to provide a deposition date by April 30, 2022, in violation of the Order. (Decl. of Turnauer ¶5.) On May 9, 2022, Ball Cross-Defendants produced a few documents in response to RFP categories 4 and 12, and failed to produce documents responsive to the remaining fourteen (14) categories. (Decl. of Turnauer ¶6.) On May 11, 2022, counsel for Foster sent an email outlining the deficiencies in the production. (Decl. of Turnauer ¶7, Exh. 3.) On July 5, 2022, Defendant’s unopposed Motion for Sanctions was heard, where Ball Cross-Defendants were ordered to pay $1,861.65 within 10 days. (7/5/22 Ruling.) Ball Cross-Defendants were again ordered to comply with the April 11, 2022 Order. (Decl. of Turnauer ¶9, Exh. 4.) On August 16, 2022, Defendant received another document production, which contained some, but not all of the documents. (Decl. of Turnauer ¶¶10, 11.) Defendant filed the instant motion on November 16, 2022. Defendant filed a notice of non-opposition on December 7, 2022. Plaintiff filed a late opposition on December 12, 2022. Defendant filed a reply on January 18, 2023. Parties filed a joint separate statement on February 10, 2023. On February 16, 2023, this Court continued the hearing on the instant motion and ordered Plaintiff to file a more focused separate statement. Parties filed their second joint separate statement on March 17, 2023.

1. RFPs to Big Baller Brand, Inc.

RFP Nos. 1, 2, & 3

These RFPs request all documents sufficient to show revenue received from 2016 to the present. (Joint Separate Statement, pgs. 2-5.)

Defendant argues he did not receive a response from BBB, Inc., however, all objections are waived and BBB, Inc. agreed to produce all documents. (Joint Separate Statement, pgs. 2-3.) Defendant argues the following documents are missing from production: bank statements for 2022; tax returns from 2019 through 2022; Transaction Details by Account from 2019 through 2022; and the same documents for the year 2023. (Joint Separate Statement, pgs. 3-6.)

Defendant’s request for sanctions against BBB, Inc. is granted with regards to RFP Nos. 1, 2, and 3 to the extent that the documents it agreed to produce have not been timely provided to Defendant.

RFP Nos. 4 & 5

These RFPs request all documents, including communications relating to BBB, Inc.’s, calculation of member distributions. (Joint Separate Statement, pgs. 6-7.)

Defendant argues he did not receive a response from BBB, Inc., however, all objections are waived and BBB, Inc. agreed to produce all documents. (Joint Separate Statement, pgs. 7-8.) Defendant argues the following documents are missing from production: bank statements for 2022; tax returns from 2019 through 2022; Transaction Details by Account from 2019 through 2022; the same documents for the year 2023; and communications regarding distributions. (Joint Separate Statement, pgs. 7-8.)

Defendant’s request for sanctions against BBB, Inc. is granted with regards to RFP Nos. 4 and 5 to the extent that the documents it agreed to produce have not been timely provided to Defendant.

RFP No. 10

This RFP requests all documents relating to BBB, Inc.’s, tax returns. (Joint Separate Statement, pg. 9.)

Defendant argues he did not receive a response from BBB, Inc., however, all objections are waived and BBB, Inc. agreed to produce all documents. (Joint Separate Statement, pg. 9.) Defendant argues the following documents are missing from production: bank statements for 2022; tax returns from 2019 through 2022; Transaction Details by Account from 2019 through 2022; the same documents for the year 2023; and communications regarding distributions. (Joint Separate Statement, pg. 9.)

Defendant’s request for sanctions against BBB, Inc. is granted with regards to RFP No. 10 to the extent that the documents it agreed to produce have not been timely provided to Defendant.

RFP No. 11

This RFP requests all documents, relating to BBB, Inc.’s, monthly and annual financial statements, balance sheets, income statements, profit and loss statements, or other such documents evidencing its income, profit and or losses from inception to the present. (Joint Separate Statement, pg. 9.)

Defendant argues he did not receive a response from BBB, Inc., however, all objections are waived and BBB, Inc., agreed to produce all documents. (Joint Separate Statement, pg. 6.) Defendant argues the following documents are missing from production: bank statements for 2022; tax returns from 2019 through 2022; Transaction Details by Account from 2019 through 2022; the same documents for the year 2023; and communications regarding distributions. (Joint Separate Statement, pgs. 10-11.)

Defendant’s request for sanctions against BBB, Inc. is granted with regards to RFP No. 11 to the extent that the documents it agreed to produce have not been timely provided to Defendant.

RFP No. 15

This RFP requests all BBB, Inc.’s, corporate minutes from January 1, 2016, to the present. (Joint Separate Statement, pg. 11.)

Defendant argues he did not receive a response from BBB, Inc., however, all objections are waived and BBB, Inc., agreed to produce all documents. (Joint Separate Statement, pg. 11.)

Defendant’s request for sanctions against BBB, Inc. is granted with regards to RFP No. 15 to the extent that the documents it agreed to produce have not been timely provided to Defendant.

2. RFPs to Big Baller Brand LLC

RFP No. 3

This RFP requests all communications relating to BBB LLC’s operations from 2016 to the present. (Joint Separate Statement, pg. 11.)

BBB LLC initially objected to the request on the grounds that it is (1) overbroad, (2) vague as to the term “operations”, and (3) unduly burdensome. Defendant conflates responses from BBB LLC with responses from Ball Cross-Defendants. Defendant argues Ball Cross-Defendants produced documents at the following Bates Nos.: 1-255, 339-413, 414-536, 561-856, 1463-1469, 1484-1527, 1541-1547. (Joint Separate Statement, pg. 12.)

Defendant argues BBB LLC failed to produce bank statements for March through December of 2017, and for 2021 through 2022. BBB, LLC, has also failed to produce Profit & Loss Statements for 2016 through 2017, 2020 through 2022, General Ledger 2016 through 2018, 2020, and 2022. (Joint Separate Statement, pg. 13.) Defendant argues BBB, LLC, has also failed to produce Tax returns for 2016, 2019 through 2022, and Transaction Detail by Account for 2016, 2019 through 2022. (Joint Separate Statement, pg. 13.) Defendant argues BBB LLC has also failed to produce these same responsive documents for 2023. (Joint Separate Statement, pg. 14.) Defendant argues Ball Cross-Defendants have also failed to produce any communications regarding the operations of the company from 2016 through 2022. (Joint Separate Statement, pg. 14.)

Defendant’s request for sanctions against BBB LLC is granted with regards to RFP No. 3 to the extent that the documents it agreed to produce per the 4/11/22 IDC order have not been timely provided to Defendant.

RFP No. 5

This RFP requests all communications relating to BBB LLC’s communications relating to all contracts it entered into from January 1, 2016, to the present. (Joint Separate Statement, pg. 14.)

BBB, LLC argues all company records, which included contracts, invoices and other financial documents were removed from the BBB warehouse by former operations manager Bryant Herrera in or around April 2019. Following the discovery of Defendant Foster’s acts BBB paused operations as of that time period. the correspondence with Shopify regarding an agreement not produced. Defendant argues BBB LLC’s statement regarding Herrera is not true and BBB LLC has provided no evidence to support this statement. Defendant argues BBB, LLC entered into contracts for semi-pro basketball league with vendors, players, and DJs, and none of these contracts are produced, including a contract with Bunim Murray. (Joint Separate Statement, pg. 15.)

Defendant’s request for sanctions against BBB LLC is granted with regards to RFP No. 5 to the extent that the documents it agreed to produce per the 4/11/22 IDC order have not been timely provided to Defendant.

RFP Nos. 9-10, 15, & 16

These RFPs request all documents sufficient to show revenue received from January 1, 2016, to the present, and communications with accountants related to financial statements including accounting documents and valuations. (Joint Separate Statement, pgs. 17-21.)

BBB LLC initially objected to the request on the grounds that it is (1) overbroad, (2) vague, and (3) unduly burdensome. Defendant conflates responses from BBB LLC with responses from Ball Cross-Defendants. Defendant argues Ball Cross-Defendants produced documents at the following Bates Nos.: 1-255, 339-413, 414-536, 561-856, 1463-1469,1484-1527, 1541-1547. BBB LLC claims no such documents exist that demonstrate communications between BBB LLC and how its accountants valuated its business. (Joint Separate Statement, pg. 17-21.)

Defendant argues BBB LLC failed to produce bank statements for March through December 2017 and for 2021-2022; Profit & Loss Statements for 2016, through 2017, 2020 through 2022; General Ledger 2016 through 2018, 2020, and 2022; Tax returns for 2016, 2019 through 2022; and Transaction Detail by Account for 2016, 2019 through 2022; and Ball Cross-Defendants have also failed to produce any communications regarding the operations of the company from 2016 through 2022. (Joint Separate Statement, pgs. 17-21.) Defendant further argues to the extent documents do not exist, Ball Cross-Defendants do not offer an explanation as to why the documents do not exist (i.e. if they were destroyed or never existed.) (Joint Separate Statement, pg. 21.)

Defendant’s request for sanctions against BBB LLC is granted with regards to RFP Nos. 9-10, 15, and 16 to the extent that the documents it agreed to produce per the 4/11/22 IDC order have not been timely provided to Defendant. To the extent documents do not exist, BBB LLC is directed to explain why the documents no longer exist.

RFP No. 18

This RFP requests documents relating to BBB Inc.’s tax returns from inception to the present. (Joint Separate Statement, pg. 23.)

BBB LLC initially objected to the request on the grounds that it is (1) overbroad, (2) vague, and (3) unduly burdensome. Defendant conflates responses from BBB LLC with responses from Ball Cross-Defendants. Defendant argues Ball Cross-Defendants produced returns for 2017 and 2018 and requested from the Williams Tax & Financial Group whether or not such documents have been prepared and filed on behalf of BBB, Inc. as of the date of this response, there has been no response by the company regarding whether or not taxes have been filed. (Joint Separate Statement, pgs. 23-24.)

Defendant’s request for sanctions against BBB LLC is granted with regards to RFP No. 18 to the extent that the documents it agreed to produce per the 4/11/22 IDC order have not been timely provided to Defendant, including tax returns for 2016 and 2019 through 2022. To the extent documents do not exist, BBB LLC is directed to explain why the documents no longer exist.

RFP Nos. 20 & 22

These RFPs request any and all monthly and annual financial statements, balance sheets, income statements, profit and loss statements, or other such documents evidencing BBB LLC’s income, profit and or losses from inception to the present and any and all monthly bank statements from January 1, 2016, to the present. (Joint Separate Statement, pgs. 24-26.)

BBB LLC initially objected to the request on the grounds that it is (1) overbroad, (2) vague, and (3) unduly burdensome. Defendant conflates responses from BBB LLC with responses from Ball Cross-Defendants. Defendant argues Ball Cross-Defendants produced documents at the following Bates Nos.: 1-255, 339-413, 414-536, 561-856, 1463-1469,1484-1527, 1541-1547.

Defendant argues BBB, LLC has failed to produce bank statements for March through December of 2017, and for 2021 through 2022; Profit & Loss Statements for 2016 through 2017 and 2020 through 2022; General Ledger 2016 through 2018, 2020, and 2022; Tax returns for 2016, 2019 through 2022; Transaction Detail by Account for 2016, 2019 through 2022; and Ball Cross-Defendants have also failed to produce any communications regarding the operations of the company from 2016 through 2022. (Joint Separate Statement, pg. 26.)

Defendant’s request for sanctions against BBB LLC is granted with regards to RFP Nos. 20 and 22 to the extent that the documents it agreed to produce per the 4/11/22 IDC order have not been timely provided to Defendant.

RFP No. 23

This RFP requests BBB LLC’s monthly credit card statements from January 1, 2016, to the present. (Joint Separate Statement, pg. 27.)

Defendant argues Ball Cross-Defendants agreed to produce the documents, and did not assert any objection to producing the documents, thereby agreeing to the IDC Order. This request was included in the IDC Statement and IDC Order.

Defendant’s request for sanctions against BBB LLC is granted with regards to RFP No. 23 to the extent that the documents it agreed to produce per the 4/11/22 IDC order have not been timely provided to Defendant.

RFP No. 25

This RFP requests BBB LLC’s corporate minutes from January 1, 2016, to the present. (Joint Separate Statement, pg. 29.)

Defendant’s request for sanctions against BBB LLC is granted with regards to RFP No. 25 to the extent that the documents it agreed to produce per the 4/11/22 IDC order have not been timely provided to Defendant.

RFP No. 82

This RFP requests documents communications relating to the transfer of an equity interest to any person that presently holds equity interest in BBB LLC. (Joint Separate Statement, pg. 30.)

BBB LLC initially objected to the request on the grounds that it is (1) overbroad, (2) vague, and (3) unduly burdensome. Defendant argues Ball Cross-Defendants produced documents at the following Bates Nos.: 7-9, 300-302, and the “2017 Tax Return, 2018 Tax Return.” (Joint Separate Statement, pg. 31.)

Defendant argues BBB LLC could have stated for the last two years that it had no additional documents, however, to date, Defendant has not received any supplemental responses stating as such. (Joint Separate Statement, pg. 31.)

Defendant’s request for sanctions against BBB LLC is granted with regards to RFP No. 82 to the extent that the documents it agreed to produce per the 4/11/22 IDC order have not been timely provided to Defendant.

3. RFPs to Ball Sports Group, Inc.

RFP No. 3

This RFP requests all communications relating to Ball Sports Group, Inc.’s operations from 2016 to the present. (Joint Separate Statement, pg. 31.)

Ball Sports Group initially objected to the request on the grounds that it is (1) overbroad, (2) vague, and (3) unduly burdensome. Defendant conflates responses from Ball Sports Group with responses from Ball Cross-Defendants. Defendant argues Ball Cross-Defendants produced documents at the following Bates Nos.: 335-338, 352-398, 555-558, 1249-1450, 1451-1454, 1470-1483. (Joint Separate Statement, pgs. 31-32.)

Defendant argues Ball Cross-Defendants have not produced any bank statements from 2016 through 2022; failed to produce Profit and Loss Statements from 2016 through 2017, 2019 through 2022; the general ledger for 2016 through 2017, 2020 through 2022; tax returns from 2016 through 2022; or transaction detail by account for 2016, 2018 through 2022. Defendant further argues Ball Cross-Defendants do not cite to any correspondence. (Joint Separate Statement, pgs. 32-33.)

Defendant’s request for sanctions against Ball Sports Group is granted with regards to RFP No. 3 to the extent that the documents it agreed to produce per the 4/11/22 IDC order have not been timely provided to Defendant.

RFP No. 5

This RFP requests all documents, including without limitation, communications relating to all contracts Ball Sports Group entered into from January 1, 2016, to the present. (Joint Separate Statement, pg. 33.)

Ball Sports Group initially objected to the request on the grounds that it is (1) overbroad, (2) vague, and (3) unduly burdensome. Defendant conflates responses from Ball Sports Group with responses from Ball Cross-Defendants. Defendant argues Ball Cross-Defendants produced documents at the following Bates Nos.: 352-398, 405-406. (Joint Separate Statement, pgs. 33-34.)

Defendant argues Ball Cross-Defendants have produced contracts but have failed to state whether there are additional contracts. (Joint Separate Statement, pg. 26.)

Defendant’s request for sanctions against Ball Sports Group is granted with regards to RFP No. 5 to the extent that the documents it agreed to produce per the 4/11/22 IDC order have not been timely provided to Defendant.

RFP Nos. 9-10, 15, & 16

Ball Sports Group initially objected to the request on the grounds that it is (1) overbroad, (2) vague, and (3) unduly burdensome. Defendant conflates responses from Ball Sports Group with responses from Ball Cross-Defendants. Defendant argues Ball Cross-Defendants produced documents at the following Bates Nos.: 335-338, 352-398, 555-558, 1249-1450, 1451-1454, 1470-1483.

Defendant argues Ball Cross-Defendants failed to produce bank statements from 2016 through 2022; Profit & Loss Statements for 2016 to 2017 and 2019 through 2022; General Ledger 2016 through 2017, 2020, and 2022; Tax returns for 2016 through 2022; and Transaction Detail by Account for 2016, 2018 through 2022; and any correspondence. (Joint Separate Statement, pgs. 27.) Defendant further argues to the extent documents do not exist, Ball Cross-Defendants do not offer an explanation as to why the documents do not exist (i.e. if they were destroyed or never existed.) (Joint Separate Statement, pgs. 34-39.)

Defendant’s request for sanctions against Ball Sports Group is granted with regards to RFP Nos. 9-10, 15, and 16 to the extent that the documents it agreed to produce per the 4/11/22 IDC order have not been timely provided to Defendant. To the extent documents do not exist, Ball Sports Group is directed to explain why the documents no longer exist.

RFP No. 18

This RFP requests all tax returns from Ball Sports Group from its inception through the present. (Joint Separate Statement, pg. 40.)

Ball Sports Group initially objected to the request on the grounds that it is (1) overbroad, (2) vague, and (3) unduly burdensome. Defendant conflates responses from Ball Sports Group with responses from Ball Cross-Defendants. Ball Sports Grooup contends that after numerous attempts it was able to get in contact with Williams Tax, the company’s tax preparer, and Williams Tax informed BSG that return [sic] was only filed for the 2018. BSG has requested that Williams Tax immediately produce the requested returns. (Joint Separate Statement, pg. 40.) Defendant argues Ball Sports Group has not produced any tax returns. (Joint Separate Statement, pg. 40.)

Defendant’s request for sanctions against Ball Sports Group is granted with regards to RFP No. 18 to the extent that the documents it agreed to produce per the 4/11/22 IDC order have not been timely provided to Defendant. To the extent documents do not exist, Ball Sports Group is directed to explain why the documents no longer exist.

RFP Nos. 20 & 22

These RFPs request any and all monthly and annual financial statements, balance sheets, income statements, profit and loss statements, or other such documents evidencing Ball Sports Group’s income, profit and or losses from inception to the present and any and all monthly bank statements from January 1, 2016, to the present. (Joint Separate Statement, pgs. 41-42.)

Ball Sports Group initially objected to the request on the grounds that it is (1) overbroad, (2) vague, and (3) unduly burdensome. Defendant conflates responses from Ball Sports Group with responses from Ball Cross-Defendants. Defendant argues Ball Cross-Defendants produced documents at the following Bates Nos.: 335-338, 352-398, 555-558, 1249-1450, 1451-1454, 1470-1483.

Defendant argues Ball Sports Group has failed to produce bank statements from 2016 through 2022; Profit & Loss Statements from 2016 through 2017 and 2019 through 2022; General Ledger 2016 through 2017, 2020 through 2022; Tax returns for 2016 through 2022; Transaction Detail by Account for 2016, 2018 through 2022; and any correspondence. (Joint Separate Statement, pgs. 42-43.)

Defendant’s request for sanctions against Ball Sports Group is granted with regards to RFP Nos. 20 and 22 to the extent that the documents it agreed to produce per the 4/11/22 IDC order have not been timely provided to Defendant.

RFP No. 23

This RFP requests Ball Sports Group’s monthly credit card statements from January 1, 2016, to the present. (Joint Separate Statement, pg. 43.)

Ball Sports Group initially objected to the request on the grounds that it is (1) overbroad, (2) vague, and (3) unduly burdensome. Defendant conflates responses from Ball Sports Group with responses from Ball Cross-Defendants. Defendant argues Ball Cross-Defendants contend no such documents exist. (Joint Separate Statement, pgs. 43-44.)

Defendant’s request for sanctions against BBB LLC is granted with regards to RFP No. 23 to the extent that Ball Sports Group fails to state why the documents do not exist.

RFP No. 25

This RFP requests Ball Sports Group’s corporate minutes from January 1, 2016, to the present. (Joint Separate Statement, pg. 44.)

Defendant conflates responses from Ball Sports Group with responses from Ball Cross-Defendants. The joint separate statement indicates Ball Cross-Defendants admit they have not produced any corporate minutes. (Joint Separate Statement, pg. 45.)

Defendant’s request for sanctions against Ball Sports Group is granted with regards to RFP No. 25 to the extent that the documents it agreed to produce per the 4/11/22 IDC order have not been timely provided to Defendant.

RFP No. 29 & 30

These RFPs request documents identifying each person that presently holds an equity interest in Ball Sports Group and communications relating to the transfer of an equity interest to any person that presently holds equity interest in Ball Sports Group. (Joint Separate Statement, pgs. 45-46.)

Defendant argues Ball Cross-Defendants produced documents at the following Bates Nos.: 7-9, 259-264 and Ball Cross-Defendants have identified one communication and articles of incorporation documents, however, neither are actual confirmation of the equity owners of the company and if there were any transfers. BSG should be able to provide more information and insight. (Joint Separate Statement, pgs. 46-47.)

Defendant’s request for sanctions against Ball Sports Group is granted with regards to RFP Nos. 29 and 30 to the extent that the documents it agreed to produce per the 4/11/22 IDC order have not been timely provided to Defendant.

RFP No. 44

This RFP requests documents relating to the television show Ball in the Family. (Joint Separate Statement, pg. 47.)

Defendant argues Ball Cross-Defendants produced documents at the following Bates Nos.: 352-398, 405-406. (Joint Separate Statement, pg. 48.)

Defendant argues there are significantly more documents that exist, as the show was broadcast for years. (Joint Separate Statement, pg. 48.)

Defendant’s request for sanctions against Ball Sports Group is granted with regards to RFP No. 44 to the extent that the documents it agreed to produce per the 4/11/22 IDC order have not been timely provided to Defendant.

4. RFPs to Lavar Ball

RFP Nos. 9-13

These RFPs request all documents sufficient to show compensation, distributions and/or dividends Defendant Lavar received from Ball Sports Group and BBB from 2016 to the present, and any revenue Lavar received from 2016 to the present. (Joint Separate Statement, pgs. 47-56.)

Lavar initially objected to the request on the grounds that it is (1) overbroad, (2) vague, and (3) unduly burdensome. Lavar further objects on the basis that the demand requests the production of impermissible financial information not relevant to the subject matter of this litigation and not reasonably calculated to lead to the discovery of admissible evidence. (Joint Separate Statement, pgs. 47-56.)

Defendant argues Ball Cross-Defendants produced documents at the following Bates Nos.: 1249-1450, 1451-1454, 1463-1469, 1470-1483, 1484-1527, 1541-1547.

Defendant argues the parties met and conferred and that Defendant agreed that he would not need the personal tax returns of Lavar, but he does need financial documents to see what income he was receiving from the company. (Joint Separate Statement, pg. 56.) Defendant argues Lavar has not produced the following documents: bank statements from 2016 through 2022; Profit and Loss Statements from 2016 through 2017, 2019 through 2022, the general ledger for 2016 through 2017, 2020 through 2022; tax returns from 2016 through 2022; Transaction Detail by Account for 2016, 2018 through 2022; and any correspondence, specifically any communications regarding the operations of the companies from 2016 through 2022.

Defendant’s request for sanctions against Lavar is granted with regards to RFP Nos. 9-13 to the extent that the documents he agreed to produce per the 4/11/22 IDC order and in meet and confer efforts have not been timely provided to Defendant.

RFP Nos. 20-22

These RFPs request all Lavar’s monthly bank statements from January 1, 2016, to the present, Lavar’s monthly credit card statements from January 1, 2016, to the present, and communications regarding Lavar’s financials from January 1, 2016, to the present. (Joint Separate Statement, pgs. 57-59.)

Defendant’s request for sanctions against Lavar is granted with regards to RFP Nos. 20-22 to the extent that the documents he agreed to produce per the 4/11/22 IDC order and in meet and confer efforts have not been timely provided to Defendant.

5. Sanctions as to Ball Cross-Defendants

OSC re: Contempt

C.C.P. §2023.030(e) provides: “The court may impose a contempt sanction by an order treating the misuse of the discovery process as a contempt of court.”

C.C.P. §1212 provides:

When the contempt is not committed in the immediate view and presence of the court or judge, a warrant of attachment may be issued to bring the person charged to answer, or, without a previous arrest, a warrant of commitment may, upon notice, or upon an order to show cause, be granted; and no warrant of commitment can be issued without such previous attachment to answer, or such notice or order to show cause.

A finding of contempt must be based on a “clear, intentional violation of a specific, narrowly drawn order. Specificity is an essential prerequisite of a contempt citation.” (Van v. Language Line Services, Inc. (2017) 8 Cal.App.5th 73, 82.) Willful “disobedience” must be shown to establish contempt. But for purposes other than contempt, “disobedience” does not require a showing of willfulness. Failure to obey (i.e., noncompliance with the court’s order) is all that need be shown. (See Puritan Insurance Co. v. Superior Court (1985) 171 Cal.App.3d 877 [interpreting former statute dealing with “refusal” to comply]; C.C.P. §2023.010(g).)

Defendant argues Plaintiff and Ball Cross-Defendants failed to abide by the April 11, 2022, Order and the Court’s July 5, 2022, Ruling stating that Ball Cross-Defendants must comply with the Court’s April 11, 2022 Order. (Motion, pg. 4.)

Plaintiff and Ball Cross-Defendants argue in opposition they responded to each of Defendant’s requests and produced the necessary documents. (Decl. of Bryant ¶21, Exh. G.)

Defendant has not demonstrated by clear and convincing evidence that Ball Cross-Defendants’ failure to produce the abovementioned documents was “willful” because Defendant has not produced the documents referenced above for this Court’s review. Accordingly, Defendant’s request for contempt sanctions against Ball Cross-Defendants is denied.

Terminating Sanctions

The Court, “after notice to any affected party…and after opportunity for hearing,” may impose terminating and/or monetary sanctions for misuses of the discovery process. (C.C.P. §2023.030(a) and (d).) Misuses of the discovery process include failing to respond or to submit to an authorized method of discovery and disobeying a court order to provide discovery. (C.C.P. §§2023.010(d) and (g).)

Generally, “[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 Cal.App.4th 262, 9 279-280.)

The Court finds Defendant is not entitled to an order granting terminating sanctions against Plaintiff and Ball Cross-Defendants. Notwithstanding Plaintiff’s and Ball Cross-Defendants’ failure to timely provide complete responses to Defendant’s RFPs, there is no evidence that less severe sanctions would not produce compliance with the discovery rules. (Mileikowsky, 128 Cal.App.4th at pgs. 279-280.) Defendant’s request for terminating sanctions against Ball Cross-Defendants is denied. Defendant’s request for an order rendering judgment by default pursuant to C.C.P. §2023.030(d) is denied. Defendant’s request to dismiss BBB’s Complaint and dismiss Ball Cross-Defendants’ answer to Defendant’s Cross-Complaint is denied.

Issue and Evidentiary Sanctions

The Court, after notice to any affected party and after opportunity for hearing, may impose “an 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.” (C.C.P. § 2023.030(b).) The Court, after notice to any affected party and after opportunity for hearing, may impose an evidence sanction by issuing an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence. (C.C.P. §2023.030(c).)

Defendant’s request in the alternative for a court order for issue sanctions against Ball Cross-Defendants establishing that (a) at no time did Defendant wrongfully take possession of any money from BBB and convert it for his personal use. (Motion, pg. 12). Alternatively, Defendant requests evidentiary sanctions establishing that (a) at no time did Defendant wrongfully take possession of any money from BBB and convert it for his personal use, (b) Defendant does not owe any money to BBB; (c) Defendant did not convert BBB’s money; (d) Defendant did not engage in fraudulent conduct with respect to BBB; and (e) Defendant did not breach any fiduciary duty to BBB. (Motion, pgs. 11-12.)

Negative Inferences

Evidence Code §413 provides:

In determining what inferences to draw from the evidence or facts in the case against a party, the trier of fact may consider, among other things, the party’s failure to explain or to deny by his testimony such evidence or facts in the case against him, or his willful suppression of evidence relating thereto, if such be the case.

Here, negative inferences are warranted. Ball Cross-Defendants’ dilatory tactics in producing documents it agreed to hand over to Defendant has not been deterred by monetary sanctions nor earlier interventions of the Court.

Defendant requests negative inferences that (a) at no time did Defendant wrongfully take possession of any money from BBB and convert it for his personal use, (b) Defendant does not owe any money to BBB; (c) Defendant did not convert BBB’s money; (d) Defendant did not engage in fraudulent conduct with respect to BBB; (e) Defendant did not breach any fiduciary duty to BBB; and (f) BBB fraudulently transferred assets to BBB, Inc. This inference is too broad. However, the Court does find that an instruction that BBB Cross-Defendants willfully suppressed specific documents and the jury may decide that the evidence would have been unfavorable to BBB Cross-Defendants.

Monetary Sanctions

Defendant requests monetary sanctions in the amount of $7,261.00. The Court finds that these sanctions are appropriate.

Dated: March _____, 2023

Hon. Monica Bachner

Judge of the Superior Court