Judge Teresa A. Beaudet, Case 19STCV35837 2022-07-25 Tentative Ruling

On October 7, 2019, Plaintiff Liza Kathryn Womack, individually, and as Administrator of the Estate of Gustav Elijah Ahr (“Plaintiff”) filed this action against Defendants First Access Entertainment, LLC, First Access Entertainment Limited (“FAE Limited”), the HYV, LLC, HYV Access, LLC, Bryant “Chase” Ortega, and Belinda Mercer.

The operative Second Amended Complaint (“SAC”) was filed on July 27, 2020. The SAC asserts causes of action for (1) negligence, (2) negligent hiring, (3) negligent retention/supervision/failure to warn, (4) negligent undertaking, (5) breach of contract, (6) breach of contract, (7) breach of fiduciary duty, (8) breach of implied covenant of good faith and fair dealing, (9) violation of Business and Professions Code section 17200, and (10) wrongful death. This matter arises from the fatal overdose of Elijah Ahr, a musician known as “Lil Peep” (“Decedent”) on November 15, 2017. (SAC, ¶ 30.)

On December 4, 2020, FAE Limited served its First Set of Requests for Production of Documents to Plaintiff (“RFP”). (Amberg Decl., ¶ 3, Ex. A.) On February 19, 2021, Plaintiff served responses to the requests. (Amberg Decl., ¶ 4, Ex. B.)

respect to certain of the RFPs, with a hearing date of January 12, 2022. (Amberg Decl., ¶ 5.) On January 12, 2022, the Court issued an order granting in part and denying in part FAE Limited’s motion to compel. The January 12, 2022 Order provides, inter alia, that “[t]he Court orders Plaintiff to serve verified supplemental responses to FAE Limited’s RFP Nos. 1-9, 11-18, 20-35 and 50, as modified by the Court above, and to serve all documents in Plaintiff’s possession, custody, and control that are responsive to these requests, as modified by the Court, within 30 days of the date of service of this order.” (Order at p. 8:13-16.) The Court notes that on January 14, 2022, FAE Limited filed a notice of entry of the Court’s January 12, 2022 Order, and a proof of service indicating that the notice was served on January 14, 2022.

On February 15, 2022, Plaintiff served amended responses to FAE Limited’s First Set of Requests for Production of Documents, and produced 43 pages of documents. (Amberg Decl., ¶¶ 7-8, Ex. D.) FAE Limited asserts that the production failed to include categories of documents

that Plaintiff was ordered to produce within 30 days by the Court’s January 12, 2022 Order. (Amberg Decl., ¶ 8.) Counsel for FAE Limited met and conferred with Plaintiff’s counsel concerning the perceived deficiencies in Plaintiff’s amended responses and production. (Amberg Decl., ¶¶ 9-13.) On March 28, 2022, the parties held a telephonic meet and confer during which Plaintiff’s counsel agreed that Plaintiff would produce additional documents. (Amberg Decl., ¶ 13.)

On April 11, 2022, Plaintiff produced additional documents, but FAE Limited asserts that this production also failed to include categories of documents that Plaintiff was ordered to produce within 30 days by the Court’s January 12, 2022 Order. (Amberg Decl., ¶ 16.) Plaintiff’s counsel also sent FAE Limited’s counsel a meet and confer email indicating that she was evaluating whether Plaintiff would be producing a privilege log related to any of FAE Limited’s requests, and that she would propose a production date of the privilege log, if any, of April 25, 2022. (Amberg Decl., ¶ 15, Ex. F.) FAE Limited asserts that no privilege log was produced by Plaintiff by April 25, 2022. (Amberg Decl., ¶ 20.)

On April 12, 2022, FAE Limited’s counsel sent Plaintiff’s counsel a meet and confer email concerning perceived deficiencies in Plaintiff’s April 11, 2022 further production of documents. (Amberg Decl., ¶ 17, Ex. H.) On April 19, 2022, Plaintiff’s counsel sent FAE Limited’s counsel an email, stating in part that , “I am in receipt of your April 12, 2022, email regarding perceived deficiencies in Plaintiff’s April 11, 2022, further production of documents…We are working to gather these documents and intend to produce them on or before Monday, April 25, 2022.” (Amberg Decl., ¶ 19, Ex. I.) FAE Limited asserts that no documents were produced by Plaintiff on or before Monday, April 25, 2022. (Amberg Decl., ¶ 21.) Plaintiff’s counsel indicated in subsequent email correspondence that they intended to produce additional documents. (Amberg Decl., ¶¶ 22-29.) FAE Limited asserts that as of the date of the filing of the instant motion, Plaintiff failed to produce any of the documents Plaintiff’s counsel promised in her writings of April 19, April 25, April 29, May 10 and May 13, 2022 or a privilege log. (Amberg Decl., ¶ 33.)

FAE Limited now moves for an order imposing sanctions on Plaintiff and her attorneys for their failure to comply with the Court’s January 12, 2022 Order. Plaintiff opposes.[1]

The Court rules on FAE Limited’s evidentiary objections to the Declaration of Paul A. Matiasic as follows:

Objection 3: sustained as to “Ms. Womack,” and “they,” overruled as to the remainder

Once a motion to compel further responses is granted, continued failure to respond or inadequate responses may result in more severe sanctions. (See, e.g., Code Civ. Proc., § 2031.310, subd. (i).) Disobeying a court order to provide discovery is a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (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, contempt, and terminating sanctions. (Code Civ. Proc., § 2023.030.)

A monetary sanction may be imposed against one engaging in the misuse of the discovery process. (Code Civ. Proc., § 2023.030, subd. (a).) An issue sanction may be imposed by way of an order that designated facts shall be taken as established or an order that prohibits any party from supporting or opposing designated claims or defenses. (Code Civ. Proc., § 2023.030, subd. (b).) An evidentiary sanction may be imposed by way of 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).)

First, FAE Limited seeks an order that the facts alleged in FAE Limited’s October 30, 2020 Cross-Complaint against Plaintiff/Cross-Defendant at ¶¶ 27, 28, 35, 36, 37, 38, 43, 44, 47, 48, 49, 50, 51, 54, 55, 56, 57, 58, 59, 62, 63, 64, 65, 66, 69, 70, 71, 75, 76 and 77 shall be taken as established by FAE Limited and that Plaintiff/Cross-Defendant is prohibited from opposing those claims.

The Court’s January 12, 2022 Order provides that “FAE Limited’s motion to compel further responses to RFP Nos. 34 and 35 is GRANTED as to documents requested regarding the allegations in the pleadings.” (Order at p. 7:20-21.)[2] Plaintiff’s amended responses to the RFP Nos. 34 and 35 provide that “Plaintiff will produce all documents responsive to this request, as limited by the Court’s Order dated January 12, 2022, that are presently within her possession, custody, or control.” (Amberg Decl., ¶ 7, Ex. D, at p. 23:18-21, 24:14-16). FAE Limited asserts that as of February 15, 2022, Plaintiff produced no documents in response to either request. (Amberg Decl., ¶ 40.) FAE Limited also asserts that Plaintiff’s supplemental production of April 11, 2022 contained no documents responsive to RFP No. 35 and only certain incomplete documents responsive to RFP No. 34. (Ibid.)

In the opposition, Plaintiff asserts that “[o]nly one category — accounting documents from the Estate (covered by FAE’s RFPs 34–35) — is still yielding material from the Estate’s outside accountants.” (Opp’n at p. 2:7-8.) Plaintiff indicates that “her lawyers are still searching for and reviewing accounting documents from the decedent’s Estate (covered by FAE’s RFPs 34–35). That involves working with the Estate’s outside accounting firm.” (Matiasic Decl., ¶ 1, p. 2.) Plaintiff also indicates that on April 11, 2022, she produced an additional 158 pages of documents, which was made up wholly of contracts between Plaintiff and third (i.e., non-FAE) parties that seemed to respond to RFP Nos. 34–35. (Matiasic Decl., ¶ 4.) Based on the foregoing, the Court does not find that the requested issue sanctions are appropriate at this time.

FAE Limited also seeks an order prohibiting Plaintiff from introducing into evidence any documents that should have been produced in response to the Court’s January 12, 2022 Order that were not previously produced.

Other than RFP Nos. 34 and 35, Plaintiff contends that she turned over everything responsive to the categories of documents that are the subject of FAE Limited’s motion, and that she has nothing more that meets these categories of requests. (See Opp’n at pp. 5:10-11, 5:19-20, 6:3-4, 6:10-11, 6:22-25.) However, as set forth above, the Court sustains FAE Limited’s evidentiary objection to Plaintiff’s counsel’s assertion that “Plaintiff has otherwise produced everything that she possesses that responds to FAE Ltd.’s requests. She has searched and, to the best of her knowledge, she has nothing more that is responsive.” (See Matiasic Decl., ¶ 3.) Plaintiff has not offered her own declaration attesting to these facts, and Mr. Matiasic does not offer facts sufficient to show that he has personal knowledge of the same. In addition, as FAE notes, Plaintiff does not argue in the opposition that the “evidence sanction” requested is not appropriate.[3]

Thus, the Court finds that FAE Limited has demonstrated good cause for an order prohibiting Plaintiff from introducing into evidence any documents that should have been produced in response to the Court’s January 12, 2022 Order that were not previously produced, except for any remaining documents that should have been produced as to Requests Nos. 34 and 35 in accordance with the Court’s January 12, 2022 Order.

FAE Limited also seeks and order requiring Plaintiff and her attorneys, Paul A. Matiasic and The Matiasic Firm, to pay FAE Limited monetary sanctions in the amount of $11,292.50 within 30 days. As set forth above, the Court’s January 12, 2022 Order required Plaintiff to “serve all documents in Plaintiff’s possession, custody, and control that are responsive to these requests, as modified by the Court, within 30 days of the date of service of this order.” (Order at p. 8:14-16.) As discussed above, Plaintiff produced additional documents on April 11, 2022, well over 30 days after FAE Limited served notice of the January 12, 2022 Order on January 14, 2022. (Amberg Decl., ¶ 16.) Moreover, Plaintiff admits that her lawyers are still searching for and reviewing accounting documents from the Decedent’s Estate covered by RFP Nos. 34-35. (Matiasic Decl., ¶ 1, p. 2.) The Court thus finds that monetary sanctions are warranted for Plaintiff’s failure to comply with the Court’s January 12, 2022 Order.

Plaintiff notes that pursuant to Code of Civil Procedure section 2023.030, subdivision (a), “[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.” FAE Limited notes that “[i]mposition of monetary sanctions against a party’s attorney requires a finding that the attorney advised the party to engage in the conduct resulting in sanctions, and the attorney bears the burden of proving he or she did not so advise the client.” (Cornerstone Realty Advisors, LLC v. Summit Healthcare REIT, Inc. (2020) 56 Cal.App.5th 771, 799.) Here, Plaintiff’s counsel (Mr. Matiasic) asserts that neither he nor anyone else at The Matiasic Firm, P.C. advised Plaintiff to ignore, delay, obstruct, or otherwise flout the discovery process. (Matiasic Decl., ¶ 7.) Thus, the Court finds that monetary sanctions are appropriate against Plaintiff only.

FAE Limited seeks monetary sanctions against Plaintiff in the amount of $11,292.50. FAE Limited indicates that it has incurred $11,292.50 as a result of Plaintiff’s failure to comply with the January 12, 2022 Order and to prepare and file this motion. (Amberg Decl., ¶¶ 42-45.) The Court finds that this amount is reasonable.

Based on the foregoing, FAE Limited’s motion is granted in part and denied in part.

The Court orders that Plaintiff is prohibited from introducing into evidence any documents that should have been produced in response to the Court’s January 12, 2022 Order that were not previously produced, except for any remaining documents that should have been produced as to RFP Nos. 34 and 35 in accordance with the Court’s January 12, 2022 Order.

Plaintiff is ordered to pay monetary sanctions in the amount of $11,292.50 to FAE Limited within 30 days of the date of this Order. Plaintiff is further ordered to produce any documents that have not yet been produced to FAE Limited as required by the Court’s January 12, 2022 Order as to RFP Nos. 34 and 35, within 20 days of the date of this Order, along with a privilege log if there are documents for which a privilege or work product protection is claimed. FAE Limited’s motion is otherwise denied.

[1]FAE Limited notes that Plaintiff filed her opposition to the instant motion on June 29, 2022, eight court days prior to the July 12, 2022 hearing. Plaintiff’s proof of service attached to the opposition indicates that the opposition was also served on June 29, 2022. Opposition papers must be filed and served least 9 court days¿before the hearing. (Code Civ. Proc. § 1005, subd. (b).) Because FAE Limited has submitted a substantive reply brief that addresses the arguments made in Plaintiff’s opposition, the Court elects to exercise its discretion to consider the untimely opposition.¿(Cal Rules of Court, Rule 3.1300, subd. (d).)

[2] Request No. 34 provides, “[p]roduce all contracts, agreements, licenses, leases, options, letters of intent, and memoranda of understanding entered into by or on behalf of the DECEDENT’s Estate between January 1, 2017 and the present, other than those to which FAE is a named party.” (Amberg Decl., ¶ 3, Ex. A.) Request No. 35 provides, “[p]roduce all accountings, income statements, bank statement, and reports showing the gross revenue earned by the DECEDENT’s Estate from all contracts, agreements, licenses, leases, options, letters of intent, memoranda of understanding, and merchandise sales transactions entered into by or on behalf of the DECEDENT’s Estate between January 1, 2017 and the present, other than those to which FAE is a named party.” (Ibid.)

[3]FAE Limited notes that “[t]he moving party need only show the failure to obey earlier discovery orders. Thereafter, the burden of proof shifts to the party seeking to avoid sanctions to establish a satisfactory excuse for his or her conduct.” (Weil & Brown, Cal. Practice Guide: Civ. Proc. Before Trial (The Rutter Group 2022) ¶ 8:2337, emphasis in original, citing to Corns v. Miller (1986) 181 Cal.App.3d 195, 201, where the Court of Appeal found that “[a]s [appellant] did not submit any opposition to the motion for sanctions, and did not appear at the hearing on the motion, he failed to discharge his burden of proof and the court acted properly in ordering sanctions against him.”)

liZa kathryn womack, Plaintiff, vs. first access entertainment, llc, et al., Defendants.	Case No.:	19STCV35837
	Hearing Date:	July 25, 2022
	Hearing Time: 2:00 p.m. [TENTATIVE] ORDER RE: FIRST ACCESS ENTERTAINMENT LIMITED’S MOTION FOR SANCTIONS AGAINST PLAINTIFF AND HER ATTORNEYS FOR FAILURE TO COMPLY WITH COURT ORDER TO PROVIDE FURTHER DISCOVERY RESPONSES AND TO PRODUCE RESPONSIVE DOCUMENTS
AND RELATED CROSS-ACTION

Superior Court of California

County of Los Angeles

Department 50