Judge: Theodore R. Howard, Case: 20-1141390, Date: 2022-08-04 Tentative Ruling

The motion by plaintiff Chavos & Rau, APLC (“plaintiff”) for contempt and imposition of evidentiary sanctions or alternatively terminating sanctions against defendants Bondcorp Realty Services, Inc. (“Bondcorp”), Bryan K. Bond (“Bond”), West One Capital Group, Inc. (“WOCG”) (together “defendants”) is GRANTED IN PART AND DENIED IN PART.

Plaintiffs seek discovery sanctions based on defendants’ failure to comply with this court’s 12/16/2021 order granting 7 of plaintiff’s 12 discovery motions compelling defendants’ to provide further verified responses to plaintiff’s first sets of written discovery.

The court has broad discretion to sanction a party who engages in the misuse of the discovery process. (Siry Investment, L.P. v. Farhkhondehpour (“Siry”) (2020) 45 Cal.App.5th 1098, 1116) Misuse of the discovery process includes failing to respond to an authorized method of discovery and disobeying a court order to provide discovery. (CCP §2023.010(d), (g)). The sanction imposed should correspond with the misuse. (Sriy, supra, 45 Cal.App.5th at p. 1117).

The sanction should not put the prevailing party in a better position than he would have been in had the discovery been provided and been completely favorable to the propounding party’s case. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793). Nor may the court impose sanctions for the misuse of the discovery process as a punishment. (Padron v. Watchtower Bible & Tract Society of New York, Inc. (2017) 16 Cal.App.5th 1246, 1259)

The motions to compel which form the basis of the discovery order at issue sought further responses, meaning defendants provided at least some discovery to plaintiff. Defendants did not engage in a total failure to provide any discovery at all. Considering the totality of the circumstances, plaintiff’s request for a terminating sanction is DENIED.

Plaintiff’s request for a contempt sanction is also DENIED, as that would only serve to punish the defendants.

Here, the evidence establishes that despite their argument to the contrary, defendants willfully failed to comply with the court’s 12/16/2021 discovery order.

“Lack of diligence may be deemed willful in the sense that the party understood his obligation, had the ability to comply, and failed to comply.” (Deyo, supra, 84 Cal.App.3d at p. 787).  The party upon whom the discovery was served has the burden of showing that the failure was not willful. (Id. at p. 788). Defendants have failed to meet this burden.

Defendants argue that their failure to comply with this court’s order was not willful because they substituted in new counsel 5 months before the court ordered the supplemental responses and were without counsel between 11/23/2021 and 5/23/2022.  Both arguments provide no excuse for failing to respond to the discovery for 18 months after it was served and no explanation for why defendants could not produce the ordered discovery for over 7 ½ months between 12/16/2021 and 8/4/2022.

Defendants also provide no explanation for why they did not and could not serve the discovery responses themselves when the “legal associate” they hired failed to serve the further discovery responses as directed.

Defendants argue that the discovery requests were duplicative and bordering on abusive, but that train left the track long ago.  If the discovery was indeed duplicative or abusive, those objections should have been raised when the discovery was served in the form of a motion for protective order.

Once the court ordered defendants to serve further verified code compliant discovery responses, they were obligated to timely comply. 

What is particularly telling about defendants’ willfulness is that they paid the monetary sanctions but did not provide the discovery requested (Mtn. 4:12-14), demonstrating that defendants were aware of the court’s order and their obligations, they just decided on their own which part of the order they would comply with (payment of sanctions) and which they would not (providing further discovery responses), the latter of which is surely more important to the plaintiff to prepare for trial.

Defendants also gloss over that it was their noncompliance with discovery obligations in the first place which led to the court’s 12/16/2021 order.

Under the circumstances, imposition of an evidentiary sanction is appropriate.

The following evidentiary sanction is imposed against defendants:

Defendants Bondcorp, West One and Bryan Bond, their attorneys, and witnesses are prohibited from:

1. Presenting and/or introducing any and all evidence that was not disclosed, as of 8/4/2022, in response to Plaintiffs written discovery requests per the court’s 12/16/2021 order.

2. Referring to any and all evidence that was not disclosed, as of 8/4/2022, in response to Plaintiff's written discovery requests per the court’s 12/16/2021 order.

Plaintiff shall submit a proposed order and give Notice of Ruling.