Judge: Yolanda Orozco, Case: BC703575, Date: 2022-12-09 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

In deciding whether to submit on the tentative ruling or attend the hearing and present oral argument, please keep the following in mind:

The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

Oral argument is not an opportunity to simply regurgitate that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated.

If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.

**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

Case Number: BC703575    Hearing Date: December 9, 2022    Dept: 31

MOTION FOR TERMINATING SANCTIONS IS GRANTED, IN PART 

Background 

On April 25, 2018, Plaintiffs Keltzey Pierre and Jean Enock filed the instant action against United Contractors; John Griffin; Edgar Manalo; and Does 1-50. The Complaint asserts causes of action for: 

1)               Property Damages;

2)               Negligence – Violation of Section 3307 of the California Building Code; and

3)               Loss of Prospective Economic Advantage.

 On February 07, 2020, Defendant United Contractors filed a Cross-Complaint against Greenleaf Engineering, Inc., et al. for indemnification, equitable indemnification, apportionment of fault, and declaratory relief.

 On November 12, 2020, Cross-Defendant Greenleaf Engineering (“Greenleaf”) filed a Cross-Complaint against Zoes 1-50 for equitable indemnity, apportionment, and declaratory relief. 

On March 25, 2022, each Plaintiff Jean Enock filed a Substitution of Attorney form representing himself. Plaintiff Keltzey Pierre filed a Substitution of Attorney form, representing herself, on March 29, 2022. 

On October 25, 2022, Cross-Defendant Greenleaf filed a Motion for an Order Imposing Terminating Sanctions and Monetary Sanctions Against Plaintiffs. 

Defendant/Cross-Complainant United Contractors filed a joiner to Greenleaf’s Motion. No opposition has been filed. 

Legal Standard 

Code of Civ. Pro (CCP) section 2023.030 permits the Court to impose terminating sanctions for discovery misuses, which are defined by CCP section 2023.010 to include the failure to respond to an authorized method of discovery and the failure to comply with a Court discovery order. The Discovery Act defines misuse of discovery as including (1) a failure to respond or to submit to an authorized method of discovery (id. § 2023.010, subd. (d)) and (2) disobedience to a court order to provide discovery (id., subd. (g)).¿ 

¿ 

Under California law, a discovery order cannot go further than is necessary to accomplish the purpose of discovery.¿ (Newland v. Superior Court (1995) 40 Cal. App. 4th 608, 613.) The purpose of discovery sanctions is to prevent abuse of the discovery process and correct the problem presented.¿ (McGinty v. Superior Court (1994) 26 Cal. App. 4th 204, 210.)¿¿ 

¿ 

In addition, an order imposing terminating sanctions must be preceded by the disobedience of an order compelling a party to do that which the party should have done in the first instance.¿ (Kravitz v. Superior Court (2001) 91 Cal. App. 4th 1015, 1021.)¿ Accordingly, there are grounds for terminating sanctions when a party fails to comply with discovery and fails to comply with Court orders regarding discovery.¿¿  

Discussion 

Cross-Defendant Greenleaf Engineering, Inc. (“Greenleaf”) seeks an order compelling Plaintiffs to pay $5,779.15 in terminating sanctions for violating the August 22, 2022 Court Order. On August 22, 2022, this Court granted Greenleaf’s request to Compel the Deposition of Plaintiffs and to Produce Documents within 30 days. (Min. Or. 08/22/22.) 

Pursuant to this Court’s August 22, 2022 Order, Greenleaf served new deposition notices on the Plaintiffs with the depositions scheduled for September 07, 2022. (Schoneman Decl. ¶ 7.) On September 04, 2022, Plaintiff Keltzey Pierre stated that her father, Plaintiff Jean Enock Pierre, was not available for deposition and asked that it be rescheduled. (Id. ¶ 7.) Plaintiff Keltzey Pierre also represented that she had retained new counsel, Byron Purcell, who was copied on Greenleaf’s response to Plaintiff Keltzey. (Id.) Greenleaf received no confirmation from Mr. Purcell as to whether he would be representing the Plaintiffs. (Id. ¶ 8.) 

On September 6, 2022, the Plaintiffs represented that they would be unavailable for deposition until after November 1, 2022, despite Greenleaf reminding Plaintiffs of the August 22, 2022 Court Order. (Schoneman Decl. ¶ 11.) Plaintiffs failed to appear at their second noticed deposition set for September 22, 2022. (Id.) 

On September 01, 2022, this Court granted the Plaintiffs ex parte application to continue the trial and the final status conference based on the Plaintiffs’ representations that they were retaining new counsel, Byron Michael Purcell of Ivie McNeill Wyatt Purcell & Diggs, and needed time to conduct fact investigation and discovery. (Min. Or. 09/01/22.) To date, no substitution of attorney form has been filed and the Plaintiffs continue to be pro se litigants. Moreover, the Plaintiffs have not opposed this instant motion. 

Accordingly, the Court agrees that Greenleaf is entitled to sanctions under Code of Civil Procedure section 2030.010 due to Plaintiff’s failure to comply with the August 22, 2022 Court Order. However, the Court is not inclined to award a terminating sanction by precluding Plaintiffs from putting on evidence that United Contractors or Greenleaf were negligent. 

Greenleaf’s request for a sanction in the amount of $5,779.15 is based on the May 09, 2022, certificates of non-appearance ($1,345.30) and the September 22, 2022, certificates of non-appearance ($1,547.90). (Schoneman Decl. ¶¶ 13, 16.) The costs for the Motion to Compel and the Motion for Terminating sanctions were $123.00 and $61.65 respectively, totaling $184.95. 

The $5,779.15 also includes attorney’s fees. Greenleaf’s counsel’s hourly rate is $187.00 per hour. (Schonemand Decl. ¶ 15.) 1.5 hours of work was spent attending and taking the certificate on non-appearance on May 9, 2022, totaling $277.50. (Id. ¶ 14.) $240.50 for 1.3 hours spent taking the depositions and certificates of non-appearance on September 22, 2022. (Id. ¶ 17.) On the motions to compel the Plaintiffs’ deposition, Greenleaf’s counsel spent 4.8 hours, totaling $888.00 in fees. (Id. ¶ 15.) On this instant motion for terminating sanctions, Greenleaf’s counsel spent 7.0 hours totaling $1,295.00. (Id. ¶ 18) 

Given that neither Greenleaf’s Motion to Compel nor this Instant Motion were opposed, the Court finds that the hours billed for working on these motions was excessive. The Court awards 3.0 hours of work on the motions to compel and 1.5 hours of work on this motion for terminating sanctions billed at 185.00 per hour. 

In total, the Court awards Greenleaf $4,428.65 in sanctions against the Plaintiffs. 

Conclusion

Cross-Defendant’s Motion for Terminating Sanctions against Plaintiff is GRANTED, in part in the amount of $4,428.65. Plaintiff shall pay this amount to Greenleaf, and is again ordered to appear for deposition. 

Moving party to give notice.