Judge: Robert B. Broadbelt, Case: 19STCV38890, Date: 2022-08-29 Tentative Ruling

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Case Number: 19STCV38890    Hearing Date: August 29, 2022    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                 Plaintiff Jason J. Emer, MD, Professional Corporation             

RESPONDING PARTY:       Defendant Dee Rodrigo

Motion for Terminating, Issue, and/or Evidence Sanctions

The court considered the moving, opposition, and reply papers filed in connection with this motion.

DISCUSSION

Plaintiff Jason J. Emer, MD, Professional Corporation (“Plaintiff”) moves for an order (1) imposing terminating, issue, and/or evidence sanctions against defendant Dee Rodrigo (“Defendant”) and his counsel of record, Maria Plumtree and Plumtree & Associates, LLP, and (2) awarding monetary sanctions in the amount of $9,682 in favor of Plaintiff and against Defendant and Plumtree & Associates, LLP.  Plaintiff moves on the ground that Defendant failed to comply with this court’s April 15, 2022 order directing Defendant to serve on Plaintiff full and complete further responses to Plaintiff’s Special Interrogatories, numbers 70 and 71.

The court grants in part and denies in part Plaintiff’s motion.  (Code Civ. Proc., § 2023.030.)

First, the court denies Plaintiff’s request for terminating sanctions since Defendant presents evidence that he partially complied with the court’s April 15, 2022 order by serving a complete response to Special Interrogatory number 70.  (Plumtree Decl., Ex. 10, p. 2:24-4:16.)  In light of Defendant’s partial compliance, the court finds that the imposition of terminating sanctions would “go further than is necessary to accomplish the purpose of discovery….”  (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 613.)

Second, the court denies Plaintiff’s request for issue sanctions.  The court may impose an issue sanction that designated facts shall be taken as established in the action, or that any party is prohibited from supporting or opposing designated claims or defenses.  (Code Civ. Proc., § 2023.030, subd. (b).)  Plaintiff requests that the court (1) impose an issue sanction declaring that Defendant’s misuse of Plaintiff’s funds is an established fact, and that Defendant may not contest Plaintiff’s contentions regarding his fraud and embezzlement of Plaintiff’s funds, and (2) order that Plaintiff may issue a new subpoena to Bank of America for Defendant’s bank records that cannot be the subject of objections based on any contention by Defendant that those records relate to non-Emer clients, funds, or projects.   (Mot., 9:21-24, 10:2-6.)  The court notes that Defendant has—belatedly—complied with the court’s order as to Special Interrogatory number 70, but has failed to provide a full response to Special Interrogatory number 71 by failing to identify the locations and general nature of the design projects as requested.  (Plumtree Decl., Ex. 10, p. 4:22-28.)

As to Plaintiff’s first request, the court finds that the proposed issue sanction is not tailored to the harm suffered by Defendant’s failure to provide information relating to the location and general nature of the design projects engaged in by Defendant.  A sanction “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 v. Kilbourne (1978) 84 Cal.App.3d 771, 793.)  “The trial court should select a sanction that is ‘“‘tailor[ed] . . . to the harm caused by the withheld discovery.’”’”  (Lopez v. Watchtower Bible & Tract Society of New York (2016) 246 Cal.App.4th 566, 604.)  Although the court recognizes that Defendant failed to comply with the court’s order that Defendant provide full and complete responses to Special Interrogatory number 71, the court finds that the issue sanction requested is not tailored to the harm caused by the withheld discovery relating to the location and nature of the design projects that Defendant contends he worked on during the specified period. 

As to Plaintiff’s second request, the court finds that the proposed issue order regarding Plaintiff’s ability to issue a new subpoena is not a remedy available under section 2023.030.  As set forth above, an issue sanction may be imposed by (1) ordering that designated facts shall be taken as established in the action, or (2) ordering that any party engaging in the misuse of discovery is prohibited from supporting or opposing designated claims or defenses.  (Code Civ. Proc., § 2023.030, subd. (b).)  Plaintiff’s request that the court permit Plaintiff to issue a new subpoena for Defendant’s bank records to which Defendant cannot object on the ground that the records relate to Defendant’s own clients or funds does not constitute an issue sanction, because it does not request that the court order that certain designated facts are to be taken as established, or that Defendant is prohibited from supporting or opposing designated claims or defenses.  (Ibid.)

Third, the court denies Plaintiff’s request for evidence sanctions.  “The court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.”  (Code Civ. Proc., § 2023.030, subd. (c).)  Plaintiff requests that the court issue an evidence sanction barring Defendant from presenting evidence of his and Exod Arch’s bank records, financial records, or any accounting conducted by them or conducted on their behalf.  The court finds that the requested evidence sanction is not appropriately tailored to the harm caused by the withheld discovery (now relating only to Defendant’s failure to fully respond to number 71 regarding the location and nature of the design projects).  (Lopez, supra, 246 Cal.App.4th at p. 604; Deyo, supra, 84 Cal.App.3d at p. 793.) 

Fourth, the court grants Plaintiff’s request for monetary sanctions against Defendant and his counsel, Plumtree & Associates, LLP.  The parties have each presented evidence establishing that Plaintiff and Defendant agreed to extend the deadline by which Defendant was required to serve further responses to be May 27, 2022.  (Segal Decl., Ex. F; Plumtree Decl., Ex. 4.)  Defendant did not serve further responses to Special Interrogatories numbers 70 and 71 until August 16, 2022, i.e., beyond the deadline agreed to by the parties.  (Plumtree Decl., ¶ 32; Plumtree Decl., Ex. 10.)  Moreover, Defendant still has not provided a full and complete further response to Special Interrogatory number 71.  Specifically, Defendant failed to identify (1) the location, and (2) the “general nature of the design project” undertaken by Defendant and Exod Arch during the specified time period as requested.  (Plumtree Decl., Ex. 10, p. 4:18-28.)  Defendant, therefore, has still failed to comply with the entirety of the court’s April 15, 2022 court order.

The court notes that the parties have presented conflicting evidence as to whether Plaintiff’s counsel agreed to excuse Defendant from complying with the court’s order.  Defendant’s counsel states in her declaration that she and Plaintiff’s counsel agreed, on April 18, 2022, that disclosure of information sought in the interrogatories would not be required if Defendant (1) “agreed to pay more toward resolution” of the claims, and (2) “assisted with facilitating a global resolution of the dispute” underlying this action.  (Plumtree Decl., ¶ 6.)  Neither party memorialized this agreement in writing.  (Plumtree Decl., ¶ 28.)  Plaintiff, in reply, contends that counsel never entered into this agreement, and that counsel’s emails prove that no such agreement ever existed.  For example, Plaintiff argues that, if Defendant’s counsel believed that Defendant did not have to comply with this order, Defendant’s counsel would not have asked Plaintiff’s counsel for an extension on May 3, 2022.  (See Segal Decl., Ex. E [May 3, 2022 email from Maria Plumtree requesting an extension to serve Defendant’s responses to Special Interrogatories numbers 70 and 71]; Plumtree Decl., ¶ 8.)

The court finds that the evidence presented warrants the imposition of monetary sanctions.  The evidence establishes that (1) the parties agreed to extend the deadline for Defendant to serve further responses to Special Interrogatories numbers 70 and 71 to May 27, 2022; (2) Defendant did not provide responses until August 16, 2022; (3) Defendant’s further response to Special Interrogatory number 71 is not full and complete because it fails to identify the locations and general nature of the projects; and (4) therefore, Defendant violated the court’s April 15, 2022 order by failing to timely serve responses, and Defendant is still in violation of the court’s April 15, 2022 order by failing to provide a full and complete response to Special Interrogatory number 71.  (Segal Decl., Ex. F; Plumtree Decl., Ex. 10.)

The court finds that $9,682 (16.8 hours x Shupe’s $395 hourly rate + 6 hours x Segal’s $495 hourly rate + $66 in fees) is a reasonable amount of sanctions to impose against Defendant and Defendant’s counsel in connection with this motion.  (Segal Decl., ¶ 15.)

In addition, in order to redress the prejudice to Plaintiff caused by Defendant’s failure to comply with the court’s April 15, 2022 order to serve a full and complete response to Special Interrogatory number 71, the court finds that Plaintiff is entitled to an additional order directing Defendant to comply with this court’s April 15, 2022 order by serving on Plaintiff a full and complete response to Special Interrogatory number 71. 

Finally, the court notes that Plaintiff’s reply requests that the court impose additional sanctions.  Specifically, Plaintiff requests that the court (1) issue an order allowing Plaintiff to subpoena and perform a forensic analysis of all records in the subject Bank of America accounts; (2) order that Defendant is not permitted to object to, or move to quash, the new subpoena; (3) order that Plaintiff is entitled to subpoena records from the purported clients identified by Defendant in response to Special Interrogatory number 70; and (4) continue trial from May of 2023 to February of 2024, with a commensurate extension of the discovery deadlines.  (Reply, 6:15-22, 7:9-13, 8:1-5.) 

The court denies Plaintiff’s requests made in reply because they were not made in Plaintiff’s moving papers and would violate Defendant’s due process rights.  The court denies Plaintiff’s requests for such relief without prejudice to seeking it in appropriate motions.   

ORDER

            The court grants in part and denies in part plaintiff Jason J. Emer, MD, PC’s motion for terminating, issue, and/or evidence sanctions.

            The court denies plaintiff Jason J. Emer, MD, PC’s requests for terminating, issue, and evidence sanctions.  (Code Civ. Proc., § 2023.030, subds. (b), (c), (d).)

            The court grants plaintiff Jason J. Emer, MD, PC’s motion for monetary sanctions.  (Code Civ. Proc., § 2023.030, subd. (a).)  The court orders defendant Dee Rodrigo and Plumtree & Associates, LLP, jointly and severally, to pay to plaintiff Jason J. Emer, MD, PC sanctions in the sum of $9,682.00 within 30 days of the date of this order.

            The court orders defendant Dee Rodrigo to serve on plaintiff Jason J. Emer, MD, PC a full and complete verified response to Special Interrogatory number 71 within 5 days of the date of this order.

The court orders plaintiff Jason J. Emer, MD, PC to give notice of this ruling.

IT IS SO ORDERED.

DATED:  August 29, 2022

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court