Judge Robert B. Broadbelt, Case Number: 20STCV35994, Date: 2025-06-04 Tentative Ruling

Judge: Robert B. Broadbelt, Case: 20STCV35994, Date: 2025-06-04 Tentative Ruling

Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.

Motion for Terminating and Other Sanctions and, Alternatively, to Compel and for Sanctions

The court considered the moving papers filed in connection with this motion. No opposition papers were filed.

Plaintiff E. Calhoon (“Plaintiff”) moves the court for an order imposing terminating, monetary, and other sanctions against defendant Douglas Arthur Schenck (“Defendant”). In the alternative, Plaintiff requests an order imposing lesser sanctions such as issue and evidence sanctions in addition to an order continuing trial to allow compliance with the stipulation and order compelling compliance with responses to written discovery.

If a party engages in a misuse of the discovery process, the court may impose monetary, issue, evidence, or terminating sanctions.¿ (Code Civ. Proc., § 2023.030.)¿ “Misuses of the discovery process include, but are not limited to, the following: [¶¶] (d) Failing to respond or to submit to an authorized method of discovery. [¶¶] (g) Disobeying a court order to provide discovery.”¿ (Code Civ. Proc., § 2023.010, subds. (d), (g).)¿ “When exercising its discretion to determine which form of sanction is most appropriate for a discovery violation, a trial court should consider various factors, including ‘the importance of the materials that were not produced—from the perspective of the offended party’s ability to litigate the case—and what prejudice, if any, the offended party suffered….’”¿ (Victor Valley Union High School District v. Superior Court of San Bernardino County (2023) 91 Cal.App.5th 1121, 1158.)¿¿¿

First, the court denies Plaintiff’s motion for terminating sanctions. (Code Civ. Proc., § 2023.030, subd. (d).)

The court acknowledges that Plaintiff and Defendant stipulated, and the court issued an order thereon, that “written discovery and records requested in unobjected to deposition notice (the same several times now) shall be provided within 30 days and thereafter [Defendant] will appear for deposition on an agreed date, or if 1 cannot be agreed upon then Plaintiff will provide 4 dates and [Defendant] must choose 1 and appear or be in violation.” (Oct. 15, 2024 Stip. & Order to Continue Trial, pp. 1:26-2:3.) The court further acknowledges that Plaintiff has presented evidence to show that Defendant has not produced the documents requested in the notice of deposition as stipulated by the parties.[1] (Pl. Decl., ¶ 3.)

However, Plaintiff did not present the underlying notice of deposition that required the production of the subject records, such that the court cannot (1) determine the prejudice that Defendant caused Plaintiff as a result of the failure to produce those records, and (2) issue an appropriate order (including an order issuing terminating sanctions) to remedy that prejudice. (Victor Valley Union High School Dist., supra, 91 Cal.App.5th at p. 1158 [court should consider various factors, including the importance of the materials not produced and what prejudice, if any, the offended party suffered].) Although Plaintiff submitted a copy of the “Notice of Taking of Deposition with Documents and Things” in connection with this motion, that Notice of Deposition is dated March 2, 2025—i.e., it was dated and served on Defendant after entry of the court’s October 15, 2024 order—and Plaintiff did not present competent evidence showing that the records demanded therein are the same records demanded in the deposition notice that was the subject of the October 15, 2024 stipulation and order. (Pl. Decl., Ex. 3.) Plaintiff also did not show that the court has issued less severe sanctions against Defendant and that those sanctions have not produced compliance with Defendant’s discovery obligations or the court’s orders. (Padron v. Watchtower Bible & Tract Society of New York, Inc. (2017) 16 Cal.App.5th 1246, 1259 [“The discovery sanctions evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination”] [internal quotation marks and citations omitted].)

Second, the court denies Plaintiff’s alternative request for issue or evidence sanctions because Plaintiff did not request the imposition of a specific issue or evidence sanction that is tailored to the harm caused by the withheld discovery. (Code Civ. Proc., § 2023.030, subds. (b), (c); Victor Valley Union High School Dist., supra, 91 Cal.App.5th at p. 1158.)

Third, the court grants Plaintiff’s request for monetary sanctions because Plaintiff has shown that Defendant engaged in conduct that is a misuse of the discovery process by failing to produce the records required by the October 15, 2024 stipulation and order. (Code Civ. Proc., § 2023.030, subd. (a); Pl. Decl., ¶ 3.) The court finds that $1,500 (3 hours x $500 hourly rate) is a reasonable amount of monetary sanctions to impose against Defendant in connection with this motion. (Kohl Decl., ¶ 3.)

The court grants in part plaintiff E. Calhoon’s motion for terminating and other sanctions and, alternatively, to compel and for sanctions as follows.

The court orders defendant Douglas Arthur Schenck to pay monetary sanctions to plaintiff E. Calhoon in the amount of $1,500 within 30 days of the date of service of this order.

The court denies all other relief requested, without prejudice to plaintiff E. Calhoon’s filing a new motion that seeks appropriate relief, including a timely motion to compel the deposition of, and the production of documents by, defendant Douglas Arthur Schenck.

[1] The court also notes that Plaintiff has asserted that Defendant did not appear for the deposition noticed for March 17, 2025. (Kohl Decl., ¶ 2.) However, Plaintiff did not show that he provided Defendant with four dates for deposition and that Defendant failed to choose one of those dates and thereafter did not appear as required by the parties’ stipulation. (Oct. 15, 2024 Stip. & Order, p. 2:1-3.) Thus, Plaintiff has not shown that Defendant did not comply with the court’s October 15, 2024 order to appear for deposition on the terms set forth therein.

e. calhoon ; Plaintiff, vs. douglas arthur schenck , et al.; Defendants.	Case No.:	20STCV35994

	Hearing Date:	June 4, 2025

	Time:	10:00 a.m.

	[tentative] Order RE: plaintiff’s motion for terminating and other sanctions and, alternatively to compel and for sanctions