Judge Teresa A. Beaudet, Case Number: 19STCV35570, Date: 2024-05-03 Tentative Ruling

On October 4, 2019, Plaintiff Paula Salvador (“Plaintiff”) filed this action against Defendants Gheorghe Firescu and Gabriela Firescu.

On May 14, 2021, Plaintiff filed the operative First Amended Complaint (“FAC”), alleging causes of action for (1)¿failure to pay minimum wage (Labor Code section 1197),¿(2)¿failure to compensate for all hours worked (Lab.¿Code, § 1198), (3)¿failure to pay overtime compensation (Lab.¿Code, § 1198),¿(4)¿failure to pay meal period compensation (Lab.¿Code, § 226.7), (5)¿failure to pay rest period compensation (Lab.¿Code § 226.7), (6)¿failure to furnish accurate wage and hour statements (Lab.¿Code¿§ 226), (7)¿failure to pay wages upon discharge (Lab.¿Code, § 201), (8)¿statutory penalties (Lab.¿Code, §§ 203 and 558), (9)¿violation of the Private Attorneys General Act of 2004,¿Labor¿Code¿§ 2698 et seq., and¿(10)¿unfair competition (Business and Professions Code¿§¿17200).¿

On June 21, 2022, Plaintiff filed a request for dismissal of all causes of action as to Gheorghe Firescu only. Gabriela Firescu is referred to herein as “Defendant.”

Plaintiff now moves for an order imposing evidentiary, issue, and/or terminating sanctions against Defendant “for failure to comply with this Court’s May 26, 2023[1] discovery order to serve supplemental discovery responses to Plaintiff’s Request for Production of Documents (‘RFP’), Set One, and Special Interrogatories, Set One.” Plaintiff also seeks monetary sanctions. Defendant filed a document captioned “Objections to Plaintiff’s Motion for Evidentiary, Terminating Sanctions.”

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. (Code Civ. Proc., § 2023.010, subds. (d), (g).) 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.)

“The court 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. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.” (Code Civ. Proc., § 2023.030, subd. (b).) “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).)

“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.” (Code Civ. Proc., § 2023.030, subd. (d).)

Plaintiff notes that on March 1, 2022, an Informal Discovery Conference (“IDC”) was held in this matter. The Court’s March 1, 2022 minute order provides, inter alia, as follows:

“The parties participated in an IDC, and they agreed and the Court ordered as follows:

The four written discovery responses attached as Exhibit A to the IDC statement filed by Defendants on 2/1/22, are deemed served on Plaintiff as of today, 3/1/22; Plaintiff has until 45 days hereafter to bring a motion to compel further, but only after meeting and conferring with counsel for Defendants in person or by telephone and, if unsuccessful, participating in an IDC regarding those responses. Counsel for Defendants must participate in the meet and confer and the IDC if one becomes necessary. If more time is needed to complete the meet and confer or the IDC process, Plaintiff may request, via an ex parte application, additional time to bring the motion to compel.”

On May 26, 2022, another IDC was held in this matter. The Court’s May 26, 2022 minute order provides, inter alia, that “[t]he parties participated in an IDC. The parties agreed and the Court ordered as follows: 1. On or before 6/9/22, Defendants will serve Plaintiff via email with substantive verified supplemental responses to the four sets of written discovery propounded to them by Plaintiff as referenced in the minute order dated 3/1/22. 2. The deposition of Plaintiff will take place on 6/20/22 at 10 a.m. in person at the office of attorney Aghaballa in Encino.”

In his declaration in support of the instant motion, Plaintiff’s counsel indicates that on June 10, 2022, Plaintiff’s counsel sent an email to Defendant’s counsel indicating, inter alia, “Defendants have blown their 6/9/22 deadline to serve verified substantive responses. Please advise ASAP when I may expect them, but by no later than Monday 6/13/22.” (Sirmabekian Decl., ¶ 3, Ex. 5.) Plaintiff’s counsel indicates that on June 14, 2022, Defendant’s counsel sent an email stating, inter alia, “[t]hanks for the reminder. Defendants on their oral depositions stated under penalty of perjury, they did not have any documents to give. That makes judge’s order moot. I don’t know what part of we don’t have anything to give in response to your more than one-year discovery demands, you don’t get. Why don’t you attempt to milk a Bull and if successful, get me his name. Review defendants’ responses from their oral depositions. You are just hoping this case will payoff your mortgages, aren't you, counsels. Good luck!” (Sirmabekian Decl., ¶ 3, Ex. 6.)[2] In his supporting declaration, Plaintiff’s counsel states that “[t]o date no supplemental responses have been received.” (Sirmabekian Decl., ¶ 3.)

As discussed, Plaintiff states that the instant motion is made “on the grounds that Defendant failed to comply with this Court’s May 26, 2022 IDC Discovery Order to serve substantive supplemental responses to Plaintiff’s Request for Production of Documents…Set One and Special Interrogatories, Set One, without justification.” (Notice of Mot. at p. 2:10-13.)

Plaintiff argues that Defendant has disobeyed the “Court’s orders to provide supplemental discovery responses and evidentiary, issue and/or terminating sanctions are appropriate under CCP §2023.030(d)…” (Mot. at pp. 3:26-4:1.)

In Defendant’s “Objections,” to Plaintiff’s motion, Defendant argues that the motion “is untimely and defective, because (i) Plaintiff did not file a notice motion asking to reopen discovery; (ii) Plaintiff did not attach a declaration of meet and confer to such motion; and (3) the initial trial has passed and no discovery can proceed beyond the initial discovery deadline.” (Objections at p. 1:16-19.)

In support of this assertion, Defendant cites to Code of Civil Procedure section 2024.020, subdivision (a), which provides that “[e]xcept as otherwise provided in this chapter, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.” Pursuant to Code of Civil Procedure section 2024.020, subdivision (b), “[e]xcept as provided in Section 2024.050, a continuance or postponement of the trial date does not operate to reopen discovery proceedings.” Code of Civil Procedure section 2024.050, subdivision (a) provides that “[o]n motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.”

However, Defendant does not appear to cite any legal authority demonstrating that a motion for sanctions constitutes a “motion[] concerning discovery” for purposes of Code of Civil Procedure section 2024.020. (Code Civ. Proc., § 2024.020, subd. (a).) As noted by Plaintiff, the instant motion does not seek to compel discovery. Rather, Plaintiff seeks an order imposing evidentiary, issue, and/or terminating sanctions against Defendant, as well as monetary sanctions.

Defendant also appears to argue that the Court’s March 1, 2022 and May 26, 2022 minute orders are “void.” In support of this assertion, Defendant appears to cite Code of Civil Procedure section 2016.080. The Court notes that this statute is repealed. (Code Civ. Proc., § 2016.080.)

Defendant also cites to Code of Civil Procedure section 2016.040, which provides that “[a] meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” Defendant asserts, without providing any supporting evidence, that “Plaintiff did not engage in meet and confer in support of her motions.” (Objections at p. 7:11.) It is unclear what motions Defendant is referring to, and in any event, it is unclear how this makes the March 1, 2022 and May 26, 2022 minute orders “void.”

Defendant also argues that “Plaintiff did not give notice to compel further responses within 45 days and defendant did not receive such notice, much less adequate notice, more than 390 days after responses and objections were served on Plaintiff. Yet the court entered void orders and sanctions of more than $8,000.” (Objections at p. 11:6-8.) This argument is confusing, and it is unclear how it relates to the instant motion for sanctions or shows that the Court’s March 1, 2022 and May 26, 2022 minute orders were purportedly void. Moreover, as noted by Plaintiff, Defendant’s arguments do not have any evidentiary support. The Declaration of Motaz M. Gerges filed in support of the “Objections” only concerns Defendant’s request for sanctions. (See Gerges Declaration.)

As set forth above, the Court’s May 26, 2022 minute order provides, inter alia, that “[t]he parties agreed and the Court ordered as follows: 1. On or before 6/9/22, Defendants will serve Plaintiff via email with substantive verified supplemental responses to the four sets of written discovery propounded to them by Plaintiff as referenced in the minute order dated 3/1/22.” Defendant does not appear to provide any evidence demonstrating that she served Plaintiff with substantive verified supplemental responses in accordance with the May 26, 2022 order. Plaintiff also does not appear to argue that she complied with the May 26, 2022 order.

However, the Court does not find that the circumstances warrant the imposition of terminating sanctions at this time. Other than the May 26, 2022 order, Plaintiff does not appear to assert that Defendant has disobeyed any previous court order to provide discovery. The Court notes that “[t]he sanctioned party’s history as a repeat offender is not only relevant, but also significant, in deciding whether to impose terminating sanctions.” (Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1106.) “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, 279-280.)

As to Plaintiff’s request for evidentiary and/or issue sanctions, Plaintiff states in the memorandum of points and authorities in support of the motion that “[b]ased on the analysis in the separate statement, Plaintiff is seeking terminating sanctions against Defendant, or, in the alternative, issue and evidence sanctions.” (Mot. at p. 4:10-12.) The Court notes that on August 28, 2023, Plaintiff filed a document captioned “Plaintiff Paula Salvador’s Separate Statement in Support of Motion for Evidentiary, Issue, and/or Terminating Sanctions.” However, the Court is unable to locate any specific document captioned “Separate Statement” within this document.

The Court notes that below Exhibit 11, starting at page 15 of the foregoing August 28, 2023 document, Plaintiff includes certain arguments concerning “Issue and Evidentiary Sanctions.” Plaintiff argues that “for each Cause of Action, the Court should order that it is established that Firescu is liable in an amount to be proven at trial. Defendant should be limited in the evidence she may produce at trial. Her evidence should be limited to the testimony and documents she provided on May 12, 2022 deposition transcript. Any other decision would unfairly prejudice Plaintiff, whom Defendant has deprived of PAGA members’ identity, contact information, timesheets, paystubs, personnel records and applicable wage and hour policies.” These requested “issue and evidentiary sanctions” are repeated at page 33 of the document.[3]

The Court does not find that Plaintiff has shown that it is warranted for the Court to issue the sanction that “for each Cause of Action…it is established that Firescu is liable in an amount to be proven at trial.” Plaintiff does not appear to cite to legal authority to support such requested sanction. As set forth above, Code of Civil Procedure section 2023.030, subdivision (b), cited by Plaintiff, provides that “[t]he court 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. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.” (Code Civ. Proc., § 2023.030, subd. (b).) Plaintiff does not appear to seek any such sanctions.

In addition, as discussed, “[t]he 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).) As set forth above, Plaintiff asserts that Defendant’s “evidence should be limited to the testimony and documents she provided on May 12, 2022 deposition transcript.” Plaintiff does not appear to provide any further argument, evidence, or explanation as to why the evidence should be so limited. Plaintiff does not appear to identify “designated matters” that Defendant should be prohibited from introducing. (Code Civ. Proc., § 2023.030, subd. (c).)

Based on the foregoing, the Court does not find that Plaintiff has demonstrated good cause for the requested evidentiary and issue sanctions.

Plaintiff also seeks an order “requiring Defendant and Defendant’s attorney of record Motaz M. Gerges, Esq. of the Law Offices of Motaz M. Gerges to pay additional monetary sanctions to Plaintiff in the amount of $6,000.” (Notice of Mot. at p. 2:8-10.) Plaintiff cites to, inter alia, Code of Civil Procedure section 2023.030, which provides in part that “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” (Code Civ. Proc., § 2023.030, subd. (a).)[4]

As discussed, the Court’s May 26, 2022 minute order provides, inter alia, “[o]n or before 6/9/22, Defendants will serve Plaintiff via email with substantive verified supplemental responses to the four sets of written discovery propounded to them by Plaintiff as referenced in the minute order dated 3/1/22.” As discussed, Plaintiff provides evidence that “[t]o date no supplemental responses have been received.” (Sirmabekian Decl., ¶ 3.) This does not appear to be refuted by Defendant. Accordingly, the Court finds that Plaintiff has demonstrated good cause for the requested monetary sanctions. The Court finds that the requested amount of $6,000.00 in sanctions is reasonable. (Sirmabekian Decl., ¶ 5.)

Lastly, Defendant argues that “[p]ursuant to Code of Civil Procedure § 2023.010 Defendant is entitled to receive her attorney’s fees and cost for defending a defective, late and frivolous discovery motion…” (Objections at p. 14:25-26.) The Court notes that Code of Civil Procedure section 2023.010 does not discuss sanctions. In addition, the Court does not find that Defendant has shown that Plaintiff filed a defective, late, or frivolous motion such that sanctions should be awarded against Plaintiff.

Defendant also cites to Code of Civil Procedure section 2023.020, which provides that “[n]otwithstanding the outcome of the particular discovery motion, the court shall impose a monetary sanction ordering that any party or attorney who fails to confer as required pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” The Court does not find that Defendant has shown that Plaintiff failed to confer as required in connection with the instant motion.

Based on the foregoing, Plaintiff’s motion is granted in part and denied in part. Plaintiff’s motion for evidentiary, issue, and/or terminating sanctions is denied.

Plaintiff’s motion for monetary sanctions is granted. Defendant and Defendant’s attorney of record Motaz M. Gerges, Esq. of the Law Offices of Motaz M. Gerges are ordered to pay monetary sanctions in the amount of $6,000.00 to Plaintiff within 30 days of the date of this Order.

[1]It appears Plaintiff is referring to the Court’s May 26, 2022 minute order. Plaintiff’s motion also states that “[t]his motion will be made on the grounds that Defendant failed to comply with this Court’s May 26, 2022 IDC Discovery Order…” (Notice of Mot. at p. 2:10-12.)

[2]Plaintiff asserts that “Defense counsel sent the email of Exhibit 6 clearly illustrating defense counsel and his client’s blatant disregard for the Court’s Orders.” (Mot. at p. 3:19-20.) The Court finds Defendant’s counsel’s email set forth in Exhibit 6 to Plaintiff’s counsel’s declaration to be unprofessional. The Court calls to the attention of Defendant’s counsel Los Angeles Superior Court Local Rule 3.26 which provides, “[t]he guidelines adopted by the Los Angeles County Bar Association are adopted as civility in litigation recommendations to members of the bar, and are contained in Appendix 3.A.” Appendix 3.A(d)(1) provides that “[c]ounsel should at all times be civil and courteous in communicating with adversaries, whether in writing or orally.”

[3]The Court notes that the requested “issue and evidentiary sanctions” do not appear to be discussed in Plaintiff’s notice of motion or in the memorandum of points and authorities in support of the motion.

[4]As discussed, “[m]isuses of the discovery process include, but are not limited to…(g) Disobeying a court order to provide discovery.” (Code Civ. Proc., § 2023.010, subd. (g).)

PAULA SALVADOR, Plaintiff, vs. GHEORGHE FIRESCU, et al., Defendants.	Case No.:	19STCV35570
	Hearing Date:	May 3, 2024
	Hearing Time:	10:00 a.m.
	[TENTATIVE] ORDER RE: PLAINTIFF PAULA SALVADOR’S MOTION FOR EVIDENTIARY, ISSUE, AND/OR TERMINATING SANCTIONS; REQUEST FOR ORDER AWARDING ATTORNEY FEES

Superior Court of California

County of Los Angeles

Department 50