Judge Upinder S. Kalra, Case 19STCV42817 2023-01-03 Tentative Ruling

Judge: Upinder S. Kalra, Case: 19STCV42817, Date: 2023-01-03 Tentative Ruling

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Case Number: 19STCV42817 Hearing Date: January 3, 2023 Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE: January 3, 2023

CASE NAME: Travis Lester, et al. v. Michael Santomieri

CASE NO.: 19STCV42817

MOTION FOR TERMINATION SANCTIONS

MOVING PARTY: Plaintiffs Travis Lester, Justin Safier, and Broseph’s Restaurant Group, LLC

RESPONDING PARTY(S): None as of December 29, 2022

REQUESTED RELIEF:

1. An order granting terminating sanctions

2. Alternatively, an order granting evidentiary sanctions

3. An order granting the request for monetary sanctions

TENTATIVE RULING:

1. Motion for Terminating Sanction is GRANTED.

2. Request for Monetary Sanctions is GRANTED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On November 27, 2019, Plaintiffs Travis Lester, Justin Safier, and Broseph’s Restaurant Group, LLC (“Plaintiffs”) filed a complaint against Defendant Michael Santomieri (“Defendant”) for (1) breach of contract, (2) breach of the implied covenant of good faith and fair dealing, (3) breach of fiduciary duty, (4) declaratory relief, (5) violation of Corporations Code § 17704.10, (6) violation of Corporations Code § 17704.09, (7) accounting, (8) concealment, (9) misrepresentation, and (10) unfair competition.

Plaintiffs allege that in May 2014, the parties entered into a binding Letter of Intent Agreement (“Agreement”) in connection with the ownership and management of 36 Pier, LLC (“Company”) and its restaurant located at 36 Pier Ave., Hermosa Beach, CA (“Restaurant”). Under the Agreement, the individual parties would work together in good faith to manage the Company and complete a revised amended operating agreement. Defendant interfered with Plaintiffs’ attempts to participate in management of the Company and breached the Agreement. For example, Defendant made distributions on the Company’s behalf without Plaintiffs’ consent; Defendant refused to work with Plaintiff to complete the amended operating agreement; and Defendant failed to distribute net profits and dividends pursuant to the Agreement.

On January 6, 2020, Defendant Michael Santomieri filed an Answer.

The current Motion for Terminating Sanctions was filed on October 4, 2022. No Opposition has been filed as of December 29, 2022.

LEGAL STANDARD:

Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidence, or monetary sanctions. (Code Civ. Proc., §§ 2023.010, subd. (g), 2025.450, subd. (h); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) An evidence sanction prohibits a party that misused the discovery process from introducing evidence on certain designated matters into evidence. (Code Civ. Proc., § 2023.030, subd. (c).) Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) “[A] penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.” (Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.) 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).)

ANALYSIS:

Plaintiffs seek terminating sanctions against Defendant Michael Santomieri.

Plaintiff seeks an order:

1. Terminating sanction to strike Defendant Santomieri’s answer and enter a default

2. Alternatively, a six-month continuance and Defendant Santomieri is ordered to provide responses

3. Evidentiary sanctions precluding introducing evidence related to “unsupplemented interrogatories and requests for production of documents”

4. Monetary sanctions for $3,375.00

Previously, Plaintiff filed a motion to compel further as to special interrogatories and request sfor production of documents in July 2021. The Court ordered Defendant to provide further responses on October 8, 2021 within 20 days. Defendant failed to provide further responses. The parties attempted to settle the matter between October 2021 and December 2021, but were unsuccessful. After Defendant’s counsel moved to be relieved as counsel on December 17, 2021, indicating that counsel had lost contact with Defendant.

Plaintiff argues that due to Defendant’s failure to comply with the Court’s October 8^th order to provide further responses, terminating sanctions are appropriate. Moreover, Plaintiff argues that sanctions are appropriate due to Defendant’s history of abuse, namely Defendant’s refusal to respond to his own counsel’s email prior to counsel being relieved and refusal to comply with the court order from October 2021. Moreover, Plaintiff has attempted to reach Defendant multiple times and has been successful. (Dec. Ching ¶ 16, Ex. 4.)

The trial court may order a terminating sanction for discovery abuse “after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.” Los Defensores, Inc. v. Gomez (2014) 223 Cal.App..4th 377, 390.) Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders. (Id.) Terminating sanctions are to be used sparingly because of the drastic effect of their application. (Department of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 191.)

If, however, if 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.” (Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 702.)

Here, the Court finds that the Defendant has acted willfully. Not only did the Defendant fail to comply with the Court’s order in October 2021, but has failed to respond to communications with both former counsel as well as Plaintiff’s counsel. It has been over a year since this Court instructed Defendant to provide further responses within 20 days. Additionally, Defendant cannot claim ignorance as Defendant’s counsel was present at the October 8, 2021, hearing. Moreover, Plaintiff indicates that the parties attempted to resolve the issue between October 2021 and December 2021. Thus, Defendant was aware of the discovery motions and court’s order. However, Defendant has failed to maintain contact with counsel and appears to be evading the current matter. Thus, the Court finds that evidentiary sanctions will not be successful deterrent.

Therefore, Motion for Terminating Sanctions is GRANTED.

Monetary Sanctions:

Plaintiffs also seek monetary sanctions for the current motion, requesting $3,375.00. This is based on 4 hours of work on the current motion, an anticipatory 2 hours for a reply, and 1.5 for the haring, at a rate of $450 per hour. As there was no opposition filed and Plaintiff did not need to prepare a reply, the court will grant sanctions totaling $1,8000 for the work on this matter, not the anticipatory hours.

Request for Sanctions is GRANTED, totaling $1,800.

Conclusion:

For the foregoing reasons, the Court decides the pending motion as follows:

Motion for Terminating Sanction is GRANTED. Defendant’s Answer is stricken, and default is entered as to Defendant Michael Santomieri.

Moving party is to give notice.

IT IS SO ORDERED.

Dated: January 3, 2023 __________________________________ Upinder S. Kalra

Judge of the Superior Court