Judge Upinder S. Kalra, Case 20STCV04101 2022-08-12 Tentative Ruling

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On January 31, 2020, Plaintiff Rosa Salomon (“Plaintiff”) filed a complaint against Defendants Yvonne Salomon (“Yvonne”) and SNB Management, LLC (“SNB”). The complaint alleged three causes of action: (1) Injunctive Relief; (2) Promissory Estoppel; and (3) Quiet Title to Real Property.

On June 18, 2020, SNB filed a verified cross-complaint against Plaintiff. The cross-complaint alleged nine causes of action: (1) Breach of Contract; (2) Slander of Title; (3) Damage to Real Property; (4) Negligence; (5) Trespass; (6) Fraud; (7) Declaratory and Injunctive Relief; (8) Ejectment; and (9) Quiet Title. On August 3, 2020, Plaintiff filed her answer to the cross-complaint.

On August 31, 2020, the Court sustained Defendants’ demurrer to the second and third causes of action with leave to amend, and denied as moot Defendants’ motion to strike.

On September 23, 2020, Plaintiff filed the operative First Amended Complaint, asserting the following four causes of action: (1) Injunctive Relief; (2) Promissory Estoppel; (3) Specific Enforcement of Inter-Vivos Gift; and (4) Declaratory Relief.

On March 10, 2021, the Court denied Plaintiff’s motion for leave to file a second amended complaint.

On August 24, 2021, the Court granted Plaintiff’s motions to compel Responses to Form and Special Interrogatories and Request for Production of Documents within 30 days.

By December 7, 2021, Defendant had failed to comply with the Court’s order, providing no discovery responses. Accordingly, Plaintiff filed a motion for terminating sanctions.

On January 3, 2022, the Court, on its own motion, continued the motion for terminating sanctions scheduled for that date until February 23, 2022. The Court announced its intention to deny the motion if Defendant filed code compliant verified responses by February 4, 2022.

On February 23, 2022, once again Defendant had failed to comply with the Court’s order. Nonetheless, the Court, on its own motion, once again continued the motion for terminating sanctions and gave Defendant one last chance to provide code compliant verified discovery responses by March 18, 2022.

On March 24, 2022, the Court denied Plaintiff’s motion for terminating sanctions. However, as a lesser sanction, the court ordered that Defendant sit for a deposition on May 19, 2022.

On May 12, 2022, by stipulation, Defendant’s deposition was rescheduled to May 25, 2022.

On June 30, 2022, the Court on its own motion, continued the motion for terminating sanctions to August 24, 2022. Once again, the Court gave Defendant an opportunity to comply with the Court’s order to sit at a deposition. In addition, the Court gave guidance to Defendant on how to supplemental their showing to comply with CCP § 2015.5 and present competent evidence that Defendant was unable to safely attend a deposition or was incompetent to sit for a deposition. The Court also set a briefing schedule for additional evidence. The Court also accepted a stipulation to continue the trial until February 29, 2023.

On August 1, 2022, nine court days before the hearing, Defendant filed documents in support of her motion for Protective Order and in opposition to terminating sanctions.

Code of Civil Procedure § 2023.030 provides for the imposition of certain sanctions where a party engages in conduct constituting the misuse of the discovery process. Among those sanctions the Court may issue are monetary sanctions (subd. (a)), issue sanctions designating certain facts as established (subd. (b)), and evidentiary sanctions limiting matters that may be introduced as evidence (subd. (c)). Code of Civil Procedure § 2023.010, subd. (g) makes “disobeying a court order to provide discovery” a misuse of the discovery process, and Code of Civil Procedure § 2032.410 further provides authority to the Court to make an order requiring a person that fails to submit to a physical or mental examination to make any further orders that are just and impose additional sanctions up to and including terminating sanctions. The imposition of specific sanctions typically depends on the severity of the party’s transgression. “The trial court cannot impose sanctions for misuse of the discovery process as a punishment.” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal. App. 4th 967, 992.) Rather, any given sanction must be “tailor[ed] to the harm caused by the withheld discovery.” (Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal. App. 4th 27, 36 (superseded by statute on other grounds).) This is because “the purpose of discovery sanctions is not to provide a weapon for punishment, forfeiture and the avoidance of a trial on the merits, but to prevent abuse of the discovery process and correct the problem presented.” (Parker v. Wolters Kluwer U.S., Inc. (2007) 149 Cal. App. 4th 285, 301.)

Code Civ. Proc. §2023.030, subd. (c) & (d) authorizes the Court to impose terminating or evidentiary sanction due to a party’s misuse of the discovery process. “A trial court must be cautious when imposing a terminating sanction because the sanction eliminates a party’s fundamental right to trial, thus implicating due process rights.” (Lopez v. Watchtower Bible and Tract Society of New York, Inc. (2016) 246 Cal. App. 4th 566, 604, review denied (July 27, 2016).) “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.” (Doppes, supra. 174 Cal. App. 4th at 992.) “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, 279–80, as modified on denial of reh'g (May 4, 2005).) Given the drastic nature of terminating sanctions, they should be treated as a measure of last resort: “[A] terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective.” (Lopez v. Watchtower Bible & Tract Soc'y of N.Y., Inc. (2016) 246 Cal.App.4th 566, 604.) For example, the court of appeal in Lopez v. Watchtower Bible & Tract Society of N.Y., Inc. disapproved of the superior court’s imposition of terminating sanctions as the first response to a party’s willful violation of a document production order without determining that lesser sanctions would be ineffective. Evidentiary sanctions are inappropriate “absent unusual circumstances, such as repeated and egregious discovery abuses” or “a failure to comply with a court order [where] the failure [is] willful.” (Lee v. Lee (2009) 175 Cal. App. 4th 1553, 1559.)

Nevertheless, there are occasions when terminating sanctions “may still be appropriate ‘as a first measure’ in ‘extreme cases’ where a litigant violates a court order and persists in the outright refusal to comply with [its] discovery obligations. Put differently, the imposition of lesser sanctions is ‘not an absolute prerequisite’ to the imposition of terminating sanctions for violation of a court order.” (Siry Inv., L.P. v. Farkhondehpour (2020) 45 Cal. App. 5th 1098, 1118-1119, review granted July 8, 2020, S262081.)

Consequently, where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidence or monetary sanctions. (CCP, §§ 2023.010(g), 2030.290(c); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) 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.) Pursuant to CCP § 2023.030(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.

Plaintiff moves for terminating sanctions on the ground that Defendants have disobeyed the Court’s March 24, 2022 Minute Order that ordered Yvonne to appear for deposition, and as a result, they have abused the discovery process. (Notice of Motion at pg. 2.)

Here, on May 12, 2022, the court ordered Defendant to appear for a deposition on May 19, 202. (Min. Order 5/12/22.) To date, Defendant has failed to appear for her deposition.

Here, Plaintiff argues that terminating sanctions are warranted because Yvonne failed to appear for her court-scheduled deposition on May 18, 2022 and has refused to reschedule. (Motion at pg. 3; Freis Decl. ¶¶ 2-3; Exh. A.) Plaintiff further contends that Defendants have established a routine of not complying with discovery. (Motion at pp. 4-5.) Thus, Plaintiff reasons that terminating sanctions are reasonable because the imposition of prior sanctions have not been effective. (Motion at pp. 5-8.)

In opposition, Defendants argue that Yvonne is unable to appear for a deposition because she had been diagnosed with early dementia. (Opposition at pp. 2-3; Crouse Decl. ¶ 7; Exh. 2.) Defendants further contend that Yvonne should be disqualified as a witness because her condition make her unable “to express [herself] comprehensibly on the subject of the testimony and [unable] to understand the obligation to tell the truth.” (Opposition at pg. 3, relying on Evidence Code § 701.) Moreover, Defendants assert that a protective order is warranted because Yvonne is unable to appear for her deposition due to her declining health. (Opposition at pp. 1-2.)

In reply, Plaintiff contends that the unsworn letter from Yvonne’s doctor is inadmissible hearsay because it does not comply with Code of Civil Procedure § 2015.5. (Reply at pg. 2, relying on Dheeraj Kulshrestha v. First Union Commercial Corporation (2004) 33 Cal.4th 601.) Regardless, the letter does not indicate that Yvonne is unable to testify, and thus, there is no evidence to support the notion that Yvonne is incompetent to testify. (Reply at pg. 2.) Because Defendants have violated the Court’s prior order, terminating sanctions are warranted. The same or similar letter was first presented at an IDC May 25, 2022. (Mot., Dec Freis ¶ 3.)

At the hearing on June 30, 2022, the Court could not have been clearer. Defendant had provided no competent evidence for her failure to obey the court order, thus a sanction was warranted. The Court, however, gave Defendant a chance to either comply with the Court’s prior order or present competent evidence why she could not or should not be required to comply. The Court clearly indicated on that date and at subsequent hearings requesting Ex Parte relief that an email from the caregiver, a note from a doctor recommending that Defendant’s decision maker make decisions on her behalf as well as a purported declaration under information and belief from counsel did not constitute competent evidence. The Court also asked Plaintiff to indicate why simply preventing Defendant from testifying or offering would be a sufficient sanction.

As of today, Defendant has yet to provide the Court competent evidence to rebut Plaintiff’s showing or support a protective order. To be clear, the Court has considered the additional, unsworn copy of a part of a medical examination from June 25, 2022 where a medical provider opining that she is “not good with questions being asked.” (Exhibit 1, Crouse Dec. filed August 1, 2022.) Still, the Court finds that no competent evidence has been produced to establish Defendant’s incapacity. First, the doctor’s letter and report Defendants rely are not declarations and are hearsay. (Code of Civil Procedure § 2015.5; Kulshrestha, supra, 33 Cal.4th at 605-606, 608-609.) Second, even if the documents are accepted as admissible evidence, they only suggest that Yvonne lacks sufficient understanding and the ability to make or communication information at times and that she is “not good with questions.” (Crouse Decl., Exh. 2; Exhibit 1, Crouse Dec. filed August 1, 2022.) This does not show that Yvonne lacks the competency in general to be a witness. (See People v. Avila (2006) 38 Cal.4th 491, 589.) And third, Yvonne’s counsel lacks personal knowledge of Yvonne’s condition. It seems what Defendant is really arguing is that she there is a risk that Defendant would undermine her own case. That is not a sufficient basis to refuse to sit for a deposition.

Defendant’s persistent non-compliance with a valid court order is disturbing. The first non-appearance occurred after a caregiver indicated, the night before the court ordered date, that Defendant was too ill for the original deposition date so it was continued by stipulation for a few days. Then, counsel announced that she would never appear because of her health. Notably, no such objection was raised when the Court first made the order or when a stipulation was entered into continuing the deposition. Moreover, it is clear to this Court on this record that either Defendant is unable (i.e. does not have and cannot obtain competent evidence) or unwilling to rebut Plaintiff’s showing. Given these facts, the Court finds Defendant’s failure to comply with the Court’s May 12, 2022 order to be willful.

Although terminating sanctions are a harsh penalty, the above evidence demonstrates that Defendant’s compliance with the Court’s orders cannot be achieved through lesser sanctions. Monetary sanctions were previously awarded. The Court has already granted a continuance with no compliance. In fact, Defendant is now objecting to any further continuance. Defendant’s request for a written or even remote deposition is unworkable as made clear by her own medical expert’s evaluation. It was reported that Defendant’s other daughter speaks for her, so written depositions would not be reliable. Moreover, Defendant has trouble hearing, so remote deposition would not work either. To excuse a deposition also is inappropriate. Upon examining the Complaint as well as the Deposition testimony provided by Defendant of other deponents, the only persons with personal knowledge of any purported oral contract or gift is Plaintiff and Defendant.

Accordingly coupled with Defendant’s documenting abuse of the discovery process, the Court finds that terminating sanctions are warranted. Defendant has not demonstrated a willingness to participate in the Discovery process as shown by Defendant’s failure to comply with Defendant’s discovery obligations. Indeed, it appears that Defendant has no intention of complying with the Court’s latest orders. “The court [is] not required to allow a pattern of abuse to continue ad infinitum.” (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 280.) Lesser sanctions have been ineffective, and Defendant has willfully disobeyed the Court’s Orders. Still, at the hearing, the court is open to hearing and considering lesser evidentiary sanctions.

Motion for Terminating Sanctions against Defendant Yvonne Salomon and Defendant/Cross-Complainant SNB Management, LLC is GRANTED.

On January 31, 2020, Plaintiff Rosa Salomon (“Plaintiff”) filed a complaint against Defendants Yvonne Salomon, SNB Management, LLC, and Does 1 through 10 (“Defendants”). The complaint alleged three causes of action: (1) Injunctive Relief, (2) Promissory Estoppel, and (3) Quiet Title to Real Property. The complaint alleges that the Plaintiff resides in the Subject Property, which is owned by Defendant Salomon, the Plaintiff’s mother, and the Defendant’s company, SNB Management, LLC. The Plaintiff has been allowed to reside rent free inside the Subject Property condominium due to her disability of multiple sclerosis. However, the Defendant promised to remodel and repair the condominium, but has stopped all repairs and left the condominium in a dilapidated condition.

On June 18, 2020, Defendants Yvonne Salomon and SNB Management LLC filed a Demurrer with a Motion to Strike, which was SUSTAINED, as leave to amend.

On August 3, 2020, Cross-Defendant Rosa Salomon filed an Answer to the Cross-Complaint.

On November 5, 2020, Plaintiff filed a Motion for Leave to File a Second Amended Complaint, which was denied.

On March 18, 2021, Plaintiff filed a Motion for Reconsideration, which was GRANTED.

On December 7, 2021, Plaintiff filed a Motion for Terminating Sanctions, which was DENIED.

A party who is over 70 years old may petition the court for a preference, which the court shall grant if the court makes both of the following findings: (1) the party has a substantial interest in the action as a whole; and (2) the health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation. (Code Civ. Proc., § 36, subd. (a).) An affidavit submitted in support of a motion for preference may be signed by the attorney for the party seeking preference based upon information and belief as to the medical diagnosis and prognosis of any party. (Code Civ. Proc., § 36.5.)

“Upon the granting of such a motion for preference, the court shall set the matter for trial not more than 120 days from that date and there shall be no continuance beyond 120 days from the granting of the motion for preference except for physical disability of a party or a party’s attorney, or upon a showing of good cause stated in the record. Any continuance shall be for no more than 15 days and no more than one continuance for physical disability may be granted to any party.” (Code Civ. Proc., § 36, subd. (f).)

Under CCP § 36(a), trial preference can be granted if it is demonstrated that the party to a civil action is (1) over 70 years old, (2) has a substantial interest in the action, and (3) the party’s health is that preference “is necessary to prevent prejudicing the party’s interest in the litigation.

Here, Defendant contends that all the requirements are met. One, Defendant Yvonne is 97 years old. Two, as 99% owner of SNB Management, which is the owner of the subject property, Defendant has a substantial interest in the matter. Lastly, Defendant has been diagnosed with dementia and hypertension. In support of this motion, Defendant’s counsel provided an affidavit based on information and belief.[1] In it, Daryl Crouse states that Yvonne has been the emergency rooms sevveral times to obtain supplemental oxygen, is diagnosed with acute hypoxic respiratory failure, acute decompensated heart failure, early major neurocognitive disorder, hearing loss, and depression/anxiety and requires an around the clock caregiver. (Dec. Crouse ¶¶ 6-7).

In their opposition to the ex-parte application for Trial Preference, Plaintiff argued that trial preferences should not be granted because Yvonne is not a Plaintiff or cross-complainant and does not personally own property at issue. However, while typically, as Plaintiff argues, these motions are for Plaintiff, the language of the statute states “a party to a civil action;” this language does not indicate that defendants are prevented from seeking trial preference. As for the owning argument, the language states the party has a “substantial interest;” Defendant has a substantial interest in SNB, which is the subject of the litigation.

“The issue under subdivision (a) is not whether an elderly litigant might die before trial or become so disabled that she might as well be absent with trial is called. Provided there is evidence that the party involved is over 70, all subdivision (a) requires is a showing that the party’s “health . . . is such that a preference is necessary to prevent prejudicing [her] interest in the litigation. (Italics added.)” (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534.) The Court finds that Defendant has sufficiently demonstrated that she has a substantial interest in the matter and that her health is fragile but she has failed to demonstrate how her interest would be prejudiced in light of the terminating sanction this court has imposed and Defendant’s express unwillingness to attend any court appearances. Nonetheless, the Court has already set a trial date well within six months of today’s date.

[1]Under CCP § 36.5, the party’s attorney may provide an affidavit based on upon information and believe as to the medical diagnosis.