Judge: Teresa A. Beaudet, Case: 19STCV28856, Date: 2023-05-22 Tentative Ruling

Case Number: 19STCV28856    Hearing Date: February 16, 2024    Dept: 50

County of Los Angeles

Department 50

Background

On August 14, 2019, Plaintiffs Felipe Neri and Daniel Garcia (“Garcia”) (jointly, “Plaintiffs”) filed this action against Defendants Ibiza Partners, Inc., GJ United Group Inc. (“GJ United”), Jesus Gallegos (“Gallegos”), and Guillermo Rojas (“Rojas”).

The Complaint alleges causes of action for (1) failure to pay minimum wage, (2) failure to compensate for all hours worked, (3) failure to pay overtime compensation, (4) failure to pay meal period compensation, (5) failure to pay rest period compensation, (6) failure to furnish accurate wage and hour statements, (7) failure to pay wages upon discharge, (8) statutory penalties, (9) retaliation, (10) national origin discrimination, (11) failure to take all steps to prevent harassment, (12) hostile work environment, (13) retaliation, (14) violation of the Private Attorneys General Act of 2004 (“PAGA”), and (15) violation of Business and Professions Code section 17200, et seq. 

            On August 15, 2023, the Court issued an Order granting Plaintiffs’ motion for an order compelling GJ United, Gallegos, and Rojas to appear at their deposition and produce “further deposition documents.”

Garcia now moves for an order imposing evidentiary, issue, and/or terminating sanctions against GJ United, Gallegos, and Rojas (collectively, “Defendants”) for failure to comply with the Court’s August 15, 2023 Order. Gallegos and Rojas oppose.

Discussion

Garcia cites to Code of Civil Procedure section 2023.010, subdivision (g), which provides that “[m]isuses of the discovery process include, but are not limited to, the following:…(g) Disobeying a court order to provide discovery.” There are a broad range of sanctions available against anyone engaging in conduct that is a misuse of the discovery process, including the issuance of monetary, evidentiary, issue, and terminating sanctions. (¿Code Civ. Proc., § 2023.030¿.)¿¿ 

Pursuant to Code of Civil Procedure section 2023.030, subdivision (d), “the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process:…(d) The court may impose a terminating sanction by one of the following orders: (1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process. (2) An order staying further proceedings by that party until an order for discovery is obeyed. (3) An order dismissing the action, or any part of the action, of that party. (4) An order rendering a judgment by default against that party.”

Here, the Court’s subject August 15, 2023 Order provides that “Plaintiffs’ motion is granted. The Court orders Rojas, Gallegos, and the PMQ for GJ United to appear for their respective depositions on or before 9/18/23. The Court also orders Defendants to produce documents in their possession, custody, or control that are responsive to the requests in the subject deposition notices at their respective depositions. The Court orders Defendants to pay $4,500.00 in monetary sanctions to Plaintiffs within 30 days of the date of service of this Order.” (August 15, 2023 Order at pp. 6:26-7:6.)

In his declaration in support of the instant motion, Garcia’s counsel states that “[o]n August 18, 2023, I served plaintiff’s deposition notice documents to all 3 defendants, with the depositions noticed for September 5, 2023 and September 7, 2023.” (Sirmabekian Decl., ¶ 7, Ex. B.) Garcia’s counsel further states that “[o]n September 1, 2023, defense counsel emailed us with the motion to be relieved as counsel moving papers, and informed me that his clients won't attend depositions.” (Sirmabekian Decl., ¶ 8.) Garcia’s counsel also states that “[a]s to the depositions of Defendants noticed for September 5, 7, 2023, no Defendant appeared for any of those depositions,” and that defendants failed to “produce documents responsive to the document requests found with the deposition notices…” (Sirmabekian Decl., ¶¶ 9-10.)

            Garcia argues that “[t]he missed September 2023 depositions were the 4th time Plaintiff has noticed those depositions and along with several IDC conferences, a motion to compel and 3 court orders to attend those depositions this factor should go in Plaintiff’s favor. Based on the above, Defendants’ conduct is willful, prejudicial to Plaintiff, interferes with this Court’s ability to administer justice, in violation of 3 court orders, and Plaintiff asks for terminating sanctions and striking each of the Defendants’ Answers in this action for Defendants’ failure to [sic] Defendants’ depositions.” (Mot. at p. 17:19-25.)

As an initial matter, the Court notes that although Garcia references “3 court orders,” it is unclear what orders Garcia is referring to (other than the August 15, 2023 Order). Garcia’s counsel’s declaration only appears to reference the Court’s August 15, 2023 Order. (See Sirmabekian Decl., ¶ 6.) In addition, Garcia’s notice of motion states that Garcia moves “for an order imposing evidentiary, issue, and/or terminating sanctions against [Defendants] for failure to comply with this Court’s August 15, 2023 discovery order to attend their respective depositions and produce documents at those depositions.” (Notice of Motion at p. 2:3-6, emphasis added.) No additional orders are referenced in the notice of motion. The Court notes that pursuant to California Rules of Court, rule 3.1110, subdivision (a), “[a] notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order.”

In their opposition to the instant motion, Gallegos and Rojas state that “Defendants are available for deposition on February 21, 2024 (Jesus Gallegos), February 22, 2024 (Guillermo Rojas), and February 21, 2024 for the corporate defendant person most knowledgeable. Defendants have always been willing.” (See Opp’n at p. 3.) Garcia did not file any reply in support of the motion and thus does not address the opposition filed by Gallegos and Rojas.

Gallegos and Rojas also cite to Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992, where the Court of Appeal noted that “[t]he discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. Discovery 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. If a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse. 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.” (Internal quotations and citations omitted.)

The Court does not find that Garcia has shown that less severe sanctions would not produce compliance with the discovery rules. In addition, as set forth above, Gallegos and Rojas state that they are “ready, willing and able” to be deposed. Based on the foregoing, the Court does not find that Garcia has shown that terminating sanctions are warranted at this time.

Garcia also states in a heading in the motion, “Document Production – Sanctions Appropriate.” (Mot. at p. 18:1.) Garcia asserts that “Plaintiff sought document production for the deposition and Defendant has not fully complied with the production requests. See the accompanying separate statement.” (Mot. at p. 18:3-4.) To the extent Garcia seeks sanctions in connection with Defendants’ failure to produce documents, Garcia’s memorandum of points and authorities in support of the motion does not specify what such requested sanctions are. In addition, Garcia does not provide any legal authority or analysis after the heading “Document Production – Sanctions Appropriate.” (See Mot. at p. 18:1-4.)

Garcia also asserts that “[i]n addition to terminating, issue and/or evidence sanctions CCP §2025.480) k) [sic] allows for additional monetary sanctions: “*** in addition to this sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against that party deponent or against any party with whom the deponent is affiliated.’ Here, Defendants have failed to obey a court order regarding discovery and additionally sanctions in the form of attorney’s fees for having to bring the present motion are appropriate. The attached Declaration of Sarkis Sirmabekian, Esq. ¶¶3-4 evidences Plaintiff’s counsel spent 7 hours preparing the present motion and expects to spend an additional 2 hours for the replay [sic] and hearing, which at $550 / hour comes to $4950 which Plaintiff asks to be assessed against the Defendants only.” (Mot. at p. 18:6-15.)

Code of Civil Procedure section 2025.480, subdivision (k), cited by Garcia, provides that “[i]f a deponent fails to obey an order entered under this section, the failure may be considered a contempt of court. In addition, if the disobedient deponent is a party to the action or an officer, director, managing agent, or employee of a party, the court may make those orders that are just against the disobedient party, or against the party with whom the disobedient deponent is affiliated, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to this sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against that party deponent or against any party with whom the deponent is affiliated.”

However, the Court does not see how Code of Civil Procedure section 2025.480 is applicable here. Pursuant to Code of Civil Procedure section 2025.480, subdivision (a), “[i]f a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” Here, Garcia does not appear to cite any order issued by the Court pursuant to Code of Civil Procedure section 2025.480. The Court notes that the August 15, 2023 Order concerns Code of Civil Procedure section 2025.450. (See August 15, 2023 Order.) 

Lastly, as discussed, Garcia’s notice of motion states that Garcia moves “for an order imposing evidentiary, issue, and/or terminating sanctions against [Defendants] for failure to comply with this Court’s August 15, 2023 discovery order to attend their respective depositions and produce documents at those depositions.” (Notice of Motion at p. 2:3-6, emphasis added.) The Court notes that Garcia’s motion does not appear to contain any argument as to why evidentiary or issue sanctions are warranted here.

In light of the foregoing, the Court denies Garcia’s motion “for evidentiary, issue, and/or terminating sanctions.”

Conclusion

Based on the foregoing, Garcia’s motion is denied.  

Garcia is ordered to give notice of this Order.

DATED:  February 16, 2024                          ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court