Judge: Walter P. Schwarm, Case: 30-2021-01207553, Date: 2022-11-22 Tentative Ruling
Motion No. 1:
Moving Party’s (Paradigm Sports Management, LLC) Application for Pro Hac Vice Admission (Application), filed on 10-5-22 under ROA No. 424, is GRANTED.
Moving Party served the Application on Defendant/Cross-Complainant (Emmanuel Dapidran Pacquiao) and the State Bar of California on 10-5-22. (Proof of Service filed on 10-5-22 under ROA No. 427.) The Application complies with California Rules of Court, rule 9.40(c), (d), and (e). (See, declaration of Emily C. Finestone filed on 10-5-22 under ROA No. 426.)
Moving Party is to give notice.
Motion No. 2:
Moving Party’s (Paradigm Sports Management, LLC) unopposed Motion for an Order Deeming Matters Admitted by Defendant/Cross-Complainant Emmanuel Dapidran Pacquiao (Motion), filed on 7-29-22 under ROA No. 368, is GRANTED.
Code of Civil Procedure section 2033.280, states, in part, “If a party to whom requests for admission are directed fails to serve a timely response, the following rules apply: (a) The party to whom the requests for admission are directed waives any objection to the requests, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). . . [¶] (b) The requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the request be deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with Section 2023.010.)”
On 6-17-22, Moving Party served Responding Party (Emmanual Dapidran Pacquiao) with “Paradigm Sports Management, LLC’s Requests for Admission to Emmanual Dapidran Pacquiao, Set Two.” (Schalk Decl., ¶ 3 and Exhibit A.) Moving Party has not receive any responses to this discovery request. (Schalk Decl., ¶ 5.)
Since Responding Part has not provided responses to the discovery request at issue, the court GRANTS Moving Party’s (Paradigm Sports Management, LLC) unopposed Motion for an Order Deeming Matters Admitted by Defendant/Cross-Complainant Emmanuel Dapidran Pacquiao filed on 7-29-22 under ROA No. 368. The court orders that “. . . the genuineness of any documents and the truth of any matters specified in . . .” “Paradigm Sports Management, LLC’s Requests for Admission to Emmanual Dapidran Pacquiao, Set Two.” (Schalk Decl., ¶ 3 and Exhibit A) be deemed admitted. (Code Civ. Proc., § 2033.280, subd. (b).)
Code of Civil Procedure section 2033.280, subdivision (c), states, in part, “. . . It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.” Therefore, the court awards a monetary sanction of $1,800.00 against Responding Party payable to Moving Party. (Code Civ. Proc. § 2033.280(c) and Cal. Rules of Court, Rule 3.1348; Schalk Decl., ¶ 6.)
Moving Party is to give notice.
Motion No. 3:
Moving Party’s (Paradigm Sports Management, LLC) unopposed Motion for Discovery Sanction Against Defendant/Cross-Complainant Emmanual Dapidran Pacquiao (Motion), filed on 10-12-22 under ROA No. 436, is GRANTED in part and DENIED in part without prejudice. The Notice for this Motion was filed on 10-12-22 under ROA No. 429.
Code of Civil Procedure section 2023.010 states, in part, “Misuses of the discovery process include, but are not limited to, the following: . . . [¶] (g) Disobeying a court order to provide discovery.” Section 2023.030 provides, “To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process: . . . Code of Civil Procedure section 2023.030 provides, “[¶] (a) The 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. . . [¶] (b) 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. . . [¶] (c) The court may impose an evidence sanction . . . [¶] (d) The court may impose a terminating sanction . . .”
Code of Civil Procedure section 2030.290, subdivision (c), states in part, “. . . If a party then fails to obey an order compelling answers, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).”
Code of Civil Procedure section 2031.300, subdivision (c), states in part, “. . . If a party then fails to obey the order compelling a response, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to this sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).”
Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992 (Doppes), explains, “The trial court has broad discretion in selecting discovery sanctions, subject to reversal only for abuse. [Citations.] The trial court should consider both the conduct being sanctioned and its effect on the party seeking discovery and, in choosing a sanction, should ‘ “attempt [ ] to tailor the sanction to the harm caused by the withheld discovery.” ’ [Citation.] The trial court cannot impose sanctions for misuse of the discovery process as a punishment. [Citations.] [¶] The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. ‘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.” ’ [Citation.] If a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse. ‘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.’ [Citation.] (Footnote 5 omitted.)
Lee v. Lee (2009) 175 Cal.App.4th 1553, 1559 (Lee), states, “Code of Civil Procedure section 2023.030, subdivision (c), provides that the trial court may sanction any party engaging in a misuse of the discovery process by prohibiting that party from introducing designated matters in evidence. A failure to respond to an authorized method of discovery may constitute misuse of the discovery process. [Citation.] Nevertheless, absent unusual circumstances, such as repeated and egregious discovery abuses, two facts are generally prerequisite to the imposition of a nonmonetary sanction. There must be a failure to comply with a court order and the failure must be willful. [Citation.]” (Italics in Lee.)
The Notice seeks the following orders: (1) “Dismissing Pacquiao’s Cross-Complaint with prejudice or, alternatively, prohibiting Pacquiao from supporting the claim set forth in his Cross-Complaint or introducing evidence in support of his Cross-Complaint.” (Notice; 7-9; (2) “Striking Pacquiao’s Answer to Paradigm’s Complaint, including the general denials and affirmative defenses or, alternatively, prohibiting Pacquiao from supporting the affirmative defenses set forth in his Answer to Paradigm’s Complaint or introducing evidence in support of his general denials and affirmative defenses set forth in his Answer to Paradigm’s Complaint.” (Notice; 2:10-14.); (3) “Prohibiting Pacquiao from opposing Paradigm’s claims set forth in the Complaint.” (Notice; 2:15.); (4) “Awarding monetary sanctions in the amount of $12,495.” (Notice; 2:16.); and (5) “Granting such other and further relief as the Court deems just and proper.” (Notice; 2:17.)
On 10-22-21, Moving Party served Responding Party (Emmanual Dapridan Pacquiao) with “Paradigm Sports Management, LLC’s Requests For The Production of Documents to Emmanuel Dapidran Pacquiao, Set One.” (Schalk Decl., ¶ 4 and Exhibit 1.) Responding Party did not provide any responses to this discovery request. (Schalk Decl., ¶¶ 21 and 22.) On 8-30-22, the court granted “. . . Moving Party’s (Paradigm Sports Management, LLC) unopposed Motion to Compel the Production of Documents and Further Responses to Its Requests for Production of Documents, Set One filed on 3-22-22 under ROA No. 302.” (Schalk Decl., ¶ 38 and Exhibit 19; See also, 8-30-22 Minute Order filed under ROA No. 402.) The court ordered Responding Party “. . . to provide verified responses . . . within 30 days from the date of service of the notice of the court’s ruling. . . .” and imposed a monetary sanction of $1,800.00 against Responding Party. (Schalk Decl., ¶ 38 and Exhibit 19; See also, 8-30-22 Minute Order filed under ROA No. 402.) The court also imposed a monetary sanction of $1,800.00 against Responding party. (Schalk Decl., ¶ 38 and Exhibit 19; See also, 8-30-22 Minute Order filed under ROA No. 402.)
On 12-20-21, Moving Party served Responding Party (Emmanual Dapridan Pacquiao) with “Form Interrogatories—General Set No. One.” (Schalk Decl., ¶ 23 and Exhibit 13.) Responding Party did not provide any responses to this discovery request. (Schalk Decl., ¶¶ 32 and 33.) On 8-30-22, the court granted “. . . Moving Party’s (Paradigm Sports Management, LLC) unopposed Motion to Compel Further Responses to Its First Form Interrogatories—General filed on 3-22-22 under ROA No. 294.” (Schalk Decl., ¶ 38 and Exhibit 19; See also, 8-30-22 Minute Order filed under ROA No. 402.) The court ordered Responding Party “. . . to provide verified responses . . . within 30 days from the date of service of the notice of the court’s ruling.” (Schalk Decl., ¶ 38 and Exhibit 19; See also, 8-30-22 Minute Order filed under ROA No. 402.) The court also imposed a monetary sanction of $1,800.00 against Responding party. (Schalk Decl., ¶ 38 and Exhibit 19; See also, 8-30-22 Minute Order filed under ROA No. 402.)
Despite the court’s orders compelling Responding Party to provide responses, Responding Party has not complied with the court’s order by providing the required responses. (Schalk Decl., ¶¶ 38-42.)
Based on the above evidence, the court finds that Responding Party has willfully violated the court’s 8-30-22 orders by failing to provide the required responses after receiving notice of the court’s orders. (Schalk Decl., ¶¶ 38-42 and Exhibit 19.) The court, however, DENIES Plaintiff’s request for a terminating sanction, issue sanction, or evidentiary sanction because these sanctions are too severe at this stage of the proceedings. The evidence shows that Defendants’ failure to comply with the court’s 8-30-22 Minute Order is the first time that Defendants have violated a court order. Doppes requires the court to take an incremental approach before issuing a terminating sanction.
The court GRANTS the Motion, and orders Responding Party to provide the responses ordered on 8-30-22 no later than 12-23-22. The court warns Responding Party that “. . . any further failure to comply with the court’s discovery orders could result in terminating sanctions” (Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th 1161, 1183-1184), evidence, issue, or monetary sanctions. The court GRANTS the Motion to the extent it requests a monetary sanction and imposes a monetary sanction in the amount of $4,800.00 against Responding Party and in favor of Moving Party. (Code Civ. Proc., § 2023.030, subd. (a); Cal. Rules of Court, rule 3.1348.)
Moving Party is to give notice.