Judge: Shirley K. Watkins, Case: 20VECV00103, Date: 2023-04-13 Tentative Ruling

If ALL parties submit on the tentative, then no appearance is necessary unless some other matter (i.e., Case Management Conference) is on calendar. It is not necessary to call the court to request oral argument. Oral argument is permitted on all tentative rulings.

Case Number: 20VECV00103    Hearing Date: April 13, 2023    Dept: T

CALIFORNIA LAW

The court applies discovery sanctions to correct prejudice, not to punish misbehavior.

            TENTATIVE RULING: Plaintiff’s motion for terminating, issue, or evidence       sanctions is denied on the grounds of overreaching and no good cause.  Plaintiff's           motion for monetary sanctions against defendants Diamond Professionals International and Joselyn Soble, jointly and severally, is granted in the sum of $2,000 for the fees           incurred for the ex parte application on 4/4/2023 and a small portion of this motion to             seek sanctions.  The bulk of this motion was unnecessary to achieve any legitimate           discovery goal.

            Monetary sanctions of $2,000 are ordered to be paid by 5/12/2023 by defendants        to the Client Trust Account of Schein Law Group, 2029 Century Park East, Suite 400      Los Angeles, California 90067 pursuant to CCP section 2023.010.

1.         Introduction

Plaintiff sued defendants Joselyn Soble and Diamond Professionals International (DPI) on January 23, 2020, for sexual harassment, retaliation, wrongful termination, misclassification, wage and hour violations, and unlawful business practices. Over the course of the three-year litigation plaintiff has resorted to court action at least five times for defendants’ failure to comply with discovery obligations. The court has imposed monetary sanctions on defendants four times already.

The instant sanctions motion centers on a discovery order the court made on January 23, 2023, as follows:

1.   That defendants produce its witnesses for deposition no later than February 10, 2023, produce nine (9) categories of documents no later than January 27, 2023 with an attendant privilege log no later than February 2, and pay $1,000.00 in sanctions; and

2.   That DPI appear for deposition on and produce documents related to thirty-two (32) requests propounded by plaintiff and pay $2,000.00 in sanctions.

            The parties attended an IDC on March 6, 2023. At that conference the court reiterated its dissatisfaction with defendants’ conduct during discovery and reminded them of the possible consequences for failing to obey the court’s orders, including the January 2023 order.

            Plaintiff applied ex parte on April 4, 2023, for another court order compelling defendant Soble to complete her deposition and setting a hearing on terminating and spoliation sanctions. On that date, the court recorded Soble’s stipulation that she would appear for deposition on or before April 30, 2023.

            Plaintiff now seeks terminating sanctions or, in the alternative, orders “establishing facts” or “preventing evidence from Defendant” that (1) plaintiff was subjected to sexual harassment by Soble, (2) plaintiff was misclassified as an independent contractor and was not compensated for overtime, and (3) plaintiff was not paid his full sales commission. (Mot., p. 10.) Each of these proposed sanctions would dispose of at least one of plaintiff’s causes of action entirely in his favor.

1.     Discussion

                        A.        Legal Standard

If a party fails to obey an order compelling answers to interrogatories or requests for production, the court may make orders that are just, including the imposition of an issue, evidence, or terminating sanctions under Chapter 7 of the Civil Discovery Act. (Code Civ. Proc., §§  2030.290, subd. (c) and 2031.300, subd. (c).)

An evidence sanction prohibits a party from introducing designated matters in evidence. (Code Civ. Proc., § 2023.030, subd. (c).) In general, a court may not impose an issue, evidence, or terminating sanction unless a party disobeys a court order. (Moofly Prods., LLC v Favila (2020) 46 Cal.App.5th 1, 11.) These more “severe sanction[s are] reserved for those circumstances where the party's discovery obligation is clear and the failure to comply with that obligation is clearly apparent.” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1424.)

“Because the persistent refusal to comply with discovery requests is equated with an admission that the disobedient party has no meritorious claim in regard to that issue, the appropriate sanction for such conduct is preclusion of that evidence from trial . . . .” (Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1219.) Exclusion is appropriate even when “a sanction proves determinative in terminating plaintiff’s case.” (Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 389.) The trial court must use such sanctions where appropriate to ensure one party’s abuses do not deprive the other of a fair trial. (See Pate v. Channel Lumber Co. (1997) 51 Cal.App.4th 1447, 1454-1455.)

                        B.        Plaintiff’s Account of Defendant’s Noncompliance

Plaintiff alleges defendant failed to produce documents or a privilege log by January 27 and February 2, respectively, per the court’s January 23 order. (Mot. 2:24-26.) Soble appeared for a deposition, individually and in her capacity as PMQ for DPI, on February 7, but the deposition was not completed. (Declaration of Joshua Schein (Schein Decl.), Ex. 2.) During the deposition she revealed the existence of responsive documents not produced in discovery. (Id., Ex. 4.)

Plaintiff also claims that although defendants’ witness Basa appeared for deposition on February 8, he left after an hour, claiming a prior appointment. (Id., ¶ 9 and Ex. 17, p. 7.) Basa, like Soble, revealed the existence of unproduced responsive documents. (Id., Ex. 14, p. 6.)

Counsel met and conferred a number of times throughout February and March and DPI repeatedly promised to produce documents; plaintiff claims DPI has made only a partial production of what plaintiff has demanded and what the witnesses have revealed in deposition. (Id., ¶ 41.) Meanwhile, Ms. Soble refused to reschedule a date to complete the deposition of Ms. Soble until she stipulated to it on April 4. (Id., Exs. 6-8.)

                        C.        Defendants’ Account of Their Own Conduct

            Defendants do not argue they strictly complied with the court’s January Order; they argue they “substantially complied”, and ask the court to take into account a host of mitigating circumstances that should purportedly excuse them from strict compliance.

            Defendants begin by contending plaintiff “has served duplicative request [sic] . . . for production of documents (set 6) for the same items requested during discovery and requested in each of the notices of deposition and demand [sic] for production of documents for [sic] Defendants and witnesses.” (Opp., 2:6-9.) Defendants offer one example of requests for documents that may overlap in subject matter, but are not clearly duplicative of one other, certainly not to the point of abusing the discovery process. (Opp., 6:7-17.)

Defendants then note that on January 23 the court ordered depositions of Basa, Soble, and another witness, Sehested, to take place no later than February 10, and the deposition of Mr. Basa began on February 8. Defendants claim counsel and the witness agreed to complete the deposition, and did complete it, on March 21. (Opp., 2:25-28.)

            As for Sehested, defendants concede his deposition took place on March 8, 2023. They offer no explanation for why Sehested’s deposition did not take place earlier according to the court’s order.  However, the court notes that he is not employed by defendant.

            Finally, defendants acknowledge that although plaintiff deposed Soble as individual and PMQ for an entire day on February 2, 2023, she did not sit for further deposition until March 29. (Opp., 3:3-4.) Defendants suggest, without expressly stating, that because they produced more documents on the date of Soble’s deposition (past the court’s January 27 deadline), plaintiff’s counsel requested additional time to review them. (Opp., 3:6-7 [“Since . . . DPI produced some documents on the day of deposition, counsel for Defendants naturally agreed to additional time . . . .”]) But communication between counsel reflects plaintiff’s repeated attempts to complete the deposition earlier than March 29. And defendants may not rely on their own late production of documents to justify further discovery delay.

                        D.        Plaintiff is entitled to further monetary sanctions.

            Plaintiff does not point to any specific example of prejudice that has been wrought by defendant’s abuses and which must be corrected by evidence or issue sanctions.  There is no evidence that plaintiff will not be able to receive a fair trial.  The court applies discovery sanctions to correct prejudice, not to punish misbehavior. (See McGinty v. Superior Court (1994) 26 Cal.App.4th 204, 210.)(Emphasis added.)

            Plaintiff testifies he has incurred or will incur $8,610 in attorneys’ fees and costs in preparing and arguing the instant motions. He has revised his sanctions request to $6,000 “[b]ased on this Court’s prior rulings . . . .” (Schein Decl. ¶ 49.) The court finds plaintiff’s fee request unreasonable and, as before, finds that the motion has been unnecessarily overworked. The court will award $2,000 in sanctions for the 4/4/2023 ex parte application and a small part of this motion to seek those sanctions.  Otherwise, the sanctions request is denied. No specific prejudice has been shown here.  Delay, on its own, it not necessarily indicative of prejudice.  The case is still 4 months from trial and there appears to be plenty of time to complete discovery.  The court further notes that some of these witnesses are not party defendants and defense counsel has arranged their cooperation in appearing without a subpoena.  One of them lives in another country.

            The court reminds counsel, as it has in the past, that the court cannot issue terminating sanctions for failure to pay monetary sanctions.  The order for monetary sanctions is an integrated order that can, on its own, be enforced as a judgment.  The court will not award additional monetary sanctions for failure to pay monetary sanctions.

            IT IS SO ORDERED, CLERK TO GIVE NOTICE.