Deck v. Developers Investment Co., Inc. ( 2023 )

Filed 3/24/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
KAREN DECK, Individually and as
Successor in Interest, etc.,
G061287
Plaintiffs and Respondents,
(Super. Ct. No. 30-2017-00907787)
v.
OPINION
DEVELOPERS INVESTMENT
COMPANY, INC., et al.,
Defendants and Appellants.
Appeal from an order of the Superior Court of Orange County, Glenn R.
Salter, Judge. Affirmed. Motion to partially dismiss appeal. Granted.
Howarth & Smith, Don Howarth, Suzelle Smith and Padraic Glaspy for
Defendants and Appellants.
Valentine Law Group, Kimberly A. Valentine, Joseph F. Fighera; Johnson
Moore, Jody C. Moore; Niddrie  Addams  Fuller  Singh and Victoria E. Fuller for
Plaintiffs and Respondents.
* * *
INTRODUCTION
In this elder abuse case, defendants appeal from an order granting a motion
by plaintiffs to compel compliance with prior discovery orders and imposing monetary
and issue sanctions. The trial court imposed 11 potentially case-dispositive issue
sanctions and $37,575 in monetary sanctions against defendants for having “repeatedly
disregarded their obligations in Discovery” and having “repeatedly fought the Court
Orders that tell them they must comply.” The court-appointed discovery referee, who
recommended those sanctions, commented that in his almost 20 years of service as a
neutral, mediator, arbitrator, and referee he had never seen “such blatant disregard of
discovery and discovery orders.”
In the notice of appeal, defendants asserted their appeal included both the
monetary sanctions and the issue sanctions. The order imposing monetary sanctions is
directly appealable under Code of Civil Procedure section 904.1, subdivision (a)(11) and
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(12). However, the order imposing issue sanctions is not directly appealable. The issue
sanctions are not inextricably intertwined with the monetary sanctions. We therefore
grant plaintiffs’ motion to dismiss the appeal regarding issue sanctions.
The trial court did not err by imposing monetary sanctions. When, as in the
present case, a party unsuccessfully opposes a discovery motion, the trial court must
impose monetary sanctions unless it finds the party opposing the motion acted with
substantial justification or that other circumstances made the imposition of sanctions
unjust. The trial court and discovery referee found precisely the opposite: They found
defendants had “continuously shown no respect for the discovery process []or for the
Court’s orders” and had “blatantly ignored warnings” about the potential serious
consequences of their abuse of discovery. The trial court and the discovery referee
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All further statutory references are to the Code of Civil Procedure.
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concluded the maximum amount of monetary sanctions was warranted for the discovery
abuses committed by defendants.
In light of such devastating findings, one would think defendants would
show some contrition or at least frankly acknowledge their conduct leading to the
imposition of sanctions. Instead, defendants attempt to portray themselves as the victims
of excessive discovery demands who are being punished merely for providing untimely
discovery responses made, supposedly at great sacrifice, despite the ravages of the
COVID-19 pandemic. The trial court and the discovery referee rejected that portrayal
and found defendants had engaged in a strategy of “continuous dilatory conduct.”
Defendants did at last serve discovery responses, but their production, made on the night
immediately before the hearing on the discovery motion that led to sanctions, was
untimely in the extreme. Whether this production was incomplete is disputed, but, in any
case, untimely compliance is not compliance. As the referee and the trial court found,
“[t]o suddenly dump volumes of materials on plaintiffs on the eve of the discovery and
motion cut off . . . simply cannot pass muster as good faith compliance with Court
Orders.”
Defendants have failed to establish the trial court should have found they
acted with substantial justification or that other circumstances made the imposition of
monetary sanctions unjust. Accordingly, we affirm the award of monetary sanctions and
dismiss the appeal in all other respects.
ALLEGATIONS
Plaintiffs and respondents are Karen Deck, individually and as successor in
interest to Emiko Matsumoto. We refer to them together as Plaintiffs.
Defendants and appellants are Life Care Centers of America, Inc., Life
Care Affiliates II, L.P., Developers Investment Company, Inc., El Toro Medical Investors
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Limited Partnership doing business as Lake Forest Nursing Center, and Forrest L.
Preston. We refer to them collectively as Defendants.
The first amended complaint asserted causes of action for
negligence/willful misconduct, elder abuse and neglect, violations of the Patients’ Bill of
Rights (Cal. Code Regs, tit. 22, § 72527), and wrongful death based on the following
allegations.
Emiko Matsumoto (the decedent) was born in May 1931. As of December
2016, when she was 85 years old, the decedent was living in a retirement community and,
though she suffered from Alzheimer’s dementia and other ailments, she was ambulatory
and able to conduct daily activities with little assistance. On December 22, 2016, the
decedent fell and, as a consequence, suffered a nondisplaced C2 spinal fracture and a
fractured humerus. She underwent surgery to repair her humerus and commenced
nonsurgical, conservative therapy for her spinal fracture. This therapy included wearing
a cervical collar, limitations on movement, and rehabilitation/physical therapy.
Immediately upon her release from a brief hospital stay, the decedent was
admitted to the Lake Forest Nursing Center (LFNC) for acute rehabilitation and skilled
nursing care to prepare her to return home.
LFNC is a 24-hour skilled nursing care facility that is the doing business as
for Defendant El Toro Medical Investors Limited Partnership (Medical Investors).
Defendant Life Care Affiliates II, L.P. (Life Care) holds a 99 percent interest in Medical
Investors. Defendant Forrest L. Preston holds the remaining 1 percent ownership interest
in Medical Investors. Defendant Developers Investment Company, Inc. (DIC) is the
corporate general partner of Medical Investors. Defendant Life Care Centers of America,
Inc. (LCCA) is the parent corporation of Medical Investors, DIC, and Life Care. LCCA
serves as the management company for Medical Investors pursuant to a management
agreement in exchange for 6 percent of Medical Investor’s annual revenue.
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Preston owns 100 percent of the shares of LCCA. He is the acting chief
executive officer of LCCA and the chairman of its board of directors.
Upon the decedent’s admission to LFNC, its staff were on notice from
several sources that the decedent was at risk for falls. LFNC staff were aware that the
decedent’s diagnosis of Alzheimer’s dementia and the effects of her pain medication
placed her at greater risk for falls. The decedent was dependent on LFNC staff to eat and
to get in and out of bed. Staff knew it was necessary for the decedent’s cervical collar to
be always in place.
Nonetheless, LFNC did not ensure sufficient staffing in number, training,
and supervision to meet the decedent’s needs with the consequence that necessary
interventions were withheld. On several occasions, family members noticed the decedent
trying to get out of bed without assistance, the decedent’s cervical collar was not in place,
and cold food remained untouched on a tray because no one had assisted the decedent in
eating it. These problems were communicated to LFNC staff, but no care plan
interventions were implemented to address the decedent’s risk of falling. Several times,
family members attempted to summon staff assistance by illuminating the decedent’s call
light; on each occasion, it took 45 minutes for staff to respond.
On January 6, 2017, the decedent fell and was found lying face down on the
floor. Staff did not call 911 until family members intervened and demanded 911 be
called. The decedent was taken to a hospital where, upon examination and assessment, it
was determined the decedent’s fall had caused a type 3 odontoid fracture, lacerations, and
bruising. The decedent was returned to her family’s home under hospice care. The
decedent passed away on January 29, 2017.
The complaint was premised on the theory that Defendants had made
calculated decisions to admit residents requiring a high level of care because those
residents generated higher reimbursement rates and payments, yet deliberately had
chosen not to employ sufficient staff in numbers, training, and supervision to meet the
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residents’ needs. The complaint alleged LFNC staff knew the decedent was at risk for
suffering injury or death from a fall if care were not provided to meet her needs and had
failed to develop and implement “care plan interventions individualized to the risks
[LFNC] knew [the] Decedent had.”
HISTORY OF DISCOVERY DISPUTES
I. Discovery Referee’s Report and Recommendations Nos. 1 and 2
The trial court appointed a discovery referee (the Referee) who, over five
years, issued 11 reports and recommendations based on 82 separate discovery motions.
The order on the Referee’s report and recommendation No. 11, which addresses
Plaintiffs’ discovery motion No. 82 (Motion No. 82), is the subject of this appeal. Report
and recommendation No. 11 is based upon discovery motions and orders that were the
subjects of report and recommendation Nos. 1 through 4 and 6.
In December 2019, the court approved and signed report and
recommendation No. 1 and report and recommendation No. 2. Report and
recommendation Nos. 1 and 2 addressed 16 discovery motions brought by Plaintiffs: 15
motions to compel further responses to requests for production (motion Nos. 18-21, 23-
27, and 29-33) and one motion to compel depositions of party-affiliated witnesses. The
Referee concluded the electronically stored information sought by Plaintiffs fell within
the scope of discovery, and report and recommendation No. 1 memorialized an
agreement between the parties to a process for its production.
The trial court, adopting the Referee’s recommendation, for the most part
granted all of the motions and ordered Defendants to provide verified discovery
responses within 20 days of service of the order. In particular, Defendants were ordered
to “give a further verified response in which Defendant produces the ‘falls management’
policy which was in force and effect during Decedent’s admission.” In addition, the trial
court ordered Defendants to produce 16 witnesses, including their director of nursing, for
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deposition within 30 days. With respect to all motions to compel further responses to
requests for production of documents, the court ordered Defendants to serve further
responses within 20 days, to support any claim of privilege with a privilege log, and, if
unable to comply, then to serve a further response that complied with section 2031.230.
II. Discovery Referee’s Report and Recommendation Nos. 3 and 4
In January 2020, the trial court approved and signed report and
recommendation Nos. 3 and 4, which addressed 26 motions brought by Plaintiffs: 13
motions to compel further responses to special interrogatories (motion Nos. 1-9, 39-41,
43); seven motions to compel further responses to form interrogatories (motion Nos. 10-
14, 16); three motions to compel further responses to requests for production (motion
Nos. 37, 38, 42); two motions to compel further responses to requests for admissions
(motion Nos. 15, 17); and one motion to compel compliance with a court order (motion
No. 44).
The trial court adopted the Referee’s recommendation and granted all of
the discovery motions. The court ordered Defendants to provide further, verified
responses to special and form interrogatories, requests for admissions, and requests for
production of documents within 20 days. The court ordered Preston to comply with a
court order entered in May 2019 by providing verified discovery responses within 20
days. Although Plaintiffs initially had requested monetary sanctions, the parties agreed to
continue the hearing and any decision on that issue.
III. Discovery Referee’s Report and Recommendation No. 6
In July 2021, the trial court approved and signed report and
recommendation No. 6, which addressed 17 motions to compel brought by Plaintiffs; 10
motions to compel further responses to requests for production (motion Nos. 45-47,
50-52, 55-58); three motions to compel further responses to special interrogatories
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(motion Nos. 48, 49, 54); three motions to compel further responses to requests for
admission (motion Nos. 68-70); and one motion to compel further responses to form
interrogatories (motion No. 53).
The trial court for the most part granted all the motions and ordered the
Defendants to provide verifications as sought by motion Nos. 45, 46, and 48 through 58
within 20 days. The court found, “The Defendants’ continuous failure to provide
requisite verification is unacceptable.” The court ordered Defendants, within 20 days, to
provide documents responsive to Plaintiffs’ requests for financial documentation and to
provide the names and contact information for “responsible parties” of other residents at
their facility who might be potential percipient witnesses. The court ordered Preston to
provide code-compliant, verified responses to various discovery requests within 20 days.
The court ordered DIC and Life Care to provide Department of Housing and Urban
Development documents relevant to the various entities’ financial relationships and
Plaintiffs’ alter ego claims and other records regarding corporate structure and medical
records management within 20 days.
Although Defendants had agreed in their opposition papers to provide
further responses to various discovery requests, the trial court declined to deem the
motions to compel to be moot in those respects. Instead, “[g]iven the discovery battle
history in the case,” the court ordered Defendants to provide further, verified responses
within 20 days. The trial court imposed monetary sanctions against Defendants in the
total amount of $7,350 and shifted the cost of the Referee’s fees to Defendants.
IV. Discovery Referee’s Report and Recommendation No. 7
On the same day the trial court approved and signed report and
recommendation No. 6, it also approved and signed report and recommendation No. 7,
which addressed five motions brought by Plaintiffs to compel compliance with a prior
court order (motion Nos. 59-63). Those motions had sought an order to compel
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Defendants to comply with; (1) report and recommendation No. 1 with respect to motion
Nos. 21, 24, 26, 28 through 31, and 34; (2) report and recommendation No. 2 with respect
to motion Nos. 18 through 20, 25, 27, and 33; (3) report and recommendation No. 3 with
respect to motion Nos. 1 through 17 and 44; (4) report and recommendation No. 4 with
respect to motion Nos. 37 through 43; and (5) report and recommendation No. 5 (not an
issue in this appeal). Plaintiffs sought issue sanctions and monetary sanctions in the
amount of $34,650.
The trial court approved the Referee’s recommendation and granted
Plaintiffs’ motion Nos. 59 through 62. The Referee, and consequently the trial court,
found: “I believe some form of sanctions should be imposed against the Defendants—the
Defendants only and not their counsel of record—on each of these motions. In my
view . . . , Defendants have simply chosen to essentially disregard the work that was done
by their then counsel of record and blatantly ignore the Court’s orders that were based
upon the subject [reports and recommendations]. In so doing, Defendants have thwarted
or at least hampered Plaintiffs’ rights to discovery, have made the discovery process
unnecessarily contentious, and have made the litigation process unacceptably more
expensive.”
Defendants argued that the COVID-19 pandemic had impaired their ability
to comply with the court’s discovery orders. The Referee, and consequently the trial
court, rejected that claim and found that “Defendants’ COVID-19 ‘defense,”’ to be “at
best, troubling and at worst shameful.” The Referee found: “By failing to comply with
Court orders over time, Defendants put themselves behind the COVID ‘8-ball.’ It is
difficult to see how they should now benefit from this situation that they could have
avoided by timely complying with prior Referee reports that have become this Court’s
Orders. But for the ravages of the pandemic, this would be a case ripe for issuing
doomsday sanctions.”
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Nonetheless, the Referee recognized the COVID-19 pandemic had
“affected every aspect of life for all of us for more than 12 months,” had “all but shut
down access to the Courts,” and had a “catastrophic” effect on elder care facilities. The
Referee recommended that the trial court impose “the maximum monetary sanctions
possible” against Defendants but, rather than impose issue sanctions, “unequivocally
warn Defendants that any further disregard of Court Orders will result in serious
doomsday sanction consequences, including . . . issue and evidentiary sanctions.” By
signing report and recommendation No. 7, the trial court imposed $34,650 in monetary
sanctions against Defendants, shifted the cost of the Referee’s fees to them, and adopted
the Referee’s findings.
V. Discovery Referee’s Report and Recommendation Nos. 8 and 9
In October 2021, the Referee signed and submitted report and
recommendation Nos. 8 and 9. In November 2021, the trial court approved and signed
report and recommendation Nos. 8 and 9.
Report and recommendation Nos. 8 and 9 denied Defendants’ motions for a
protective order to “‘Restrict the Frequency and Extent of Plaintiffs’ Discovery’” and for
a hearing on disputes as to various depositions, and recommended the depositions,
including Preston’s, “shall be scheduled,” “without further objection,” and “without
delay.” The Referee found: “Defendants’ conduct throughout my tenure as Referee
simply does not enable them to complain about discovery motions, completion of
depositions, and depositions of key witnesses. Defendants have consistently, repeatedly,
unabashedly, and without apology blatantly disregarded nearly every Report &
Recommendation and the corresponding Court Orders. To come here now asking me, as
Referee, and the Court to insulate them from honestly and completely responding to
discovery simply cannot be condoned.”
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The Referee gave this warning: “Though also ignored by Defendants, let
me again voice a word of caution about their continuing conduct. Further disrespect of
the process will leave me no choice but to report and recommend that the Court impose
the Draconian sanctions that I diligently have tried to avoid.”
VI. Plaintiffs’ Discovery Motion No. 82
While the motion resulting in report and recommendation No. 7 was
pending, Defendants retained new counsel and requested a continuance of the hearing
date based on their representation that counsel intended “to ‘get control of the discovery
process and to comply with whatever orders [were] outstanding and to provide
[P]laintiffs with responses along with existing documents.’” Defendants new counsel
filed four motions seeking to “‘Modify and/or Disregard’” report and recommendation
Nos. 1 through 4. The Referee recommended denying all four motions, and the trial court
approved the Referee’s recommendation.
By October 2021, Defendants still had not fully complied with report and
recommendation Nos. 1 through 4 and had made no effort to comply with report and
recommendation No. 6. Defendants had not paid “a single cent” of the monetary
sanctions or the Referee’s costs as had been ordered by the court.
In October 2021, Plaintiffs submitted discovery Motion No. 82 to the
Referee. At that time, the trial date had been set as December 6, 2021, and the discovery
cutoff was in November 2021. Plaintiffs sought an order compelling Defendants to
comply with report and recommendation Nos. 1 through 4 and 6, imposing $37,575 in
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monetary sanctions, and imposing issue sanctions on 11 issues. Motion No. 82
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The 11 issues were:
“1. That LCCA controlled the budget of LFNC during Emiko Matsumoto’s
admission to LFNC;
“2. That LCCA operated, managed, and controlled LFNC during Emiko
Matsumoto’s admission to LFNC;
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identified instances in which Defendants’ failure to comply with the trial court’s
discovery orders was hampering their ability to establish the facts pertinent to the issue
sanctions requested.
In opposing Motion No. 82, Defendants contended they had produced over
2,000 documents and that 46 depositions had been taken in the case. Defendants
admitted they had not complied with report and recommendation Nos. 1 through 4 and
6—Defendants claimed they were “in the process of reviewing the remaining
court-ordered documents to produce within the next week or two, along with verified
supplemental responses, and they anticipate satisfying [report and recommendation Nos 1
through 4], and hopefully [No. 6], before the hearing on the instant motion.” Defendants
“3. That LFNC had no Fall Management or Prevention policy and
procedure in place during Decedent Emiko Matsumoto’s admission to LFNC resulting in
her fall;
“4. That Defendants failed to meet a minimum 3.2 Nursing Hours per
Patient Day for Each day of Decedent Emiko Matsumoto’s admission;
“5. That Defendants failed to provide sufficient nursing staff to provide
care and services as required in Decedent Emiko Matsumoto’s Care Plan, resulting in her
fall;
“6. That Co-Defendants LFNC, LCCA, [Life Care], DIC, and Forrest L.
Preston were engaged in a joint venture, a single enterprise, and were alter egos of one
another in the time period of Decedent’s admission to LFNC;
“7. That Forrest L. Preston, and Officers, Directors, and Managing Agents
of LCCA, LFNC, DIC, and [Life Care] authorized and ratified the decision to operate
LFNC with insufficient nursing staff during Decedent’s admission resulting in her fall on
January 6, 2017;
“8. That Forrest L. Preston controlled the operations and business activities
of Co-Defendants LCCA, LFNC, [Life Care], and DIC during Decedent’s admission to
LFNC;
“9. That Defendants LFNC, LCCA, [Life Care], DIC, and Preston’s
conduct amounts to ‘Recklessness’[;]
“10. That LCCA, LFNC, [Life Care], DIC and Preston had care and
custody of Decedent during Decedent’s admission to LFNC;
“11. That the conduct of LFNC, LCCA, [Life Care], DIC and Preston
constituted Malice, Oppression, and Fraud.” (Fn. omitted.)
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also claimed that by the end of the month they would serve the supplemental responses
required by report and recommendation Nos. 1 through 4 and 6.
After Plaintiffs had filed Motion No. 82 Defendants began producing the
responses and information required of them by report and recommendation Nos. 1
through 4 and 6. Defendants produced information identifying other residents’
“responsible parties” on October 15, 2021, two weeks after Plaintiffs filed Motion No.
82, and 50 days after expiration of the deadline set down in report and recommendation
No. 6. Close to the end of the business day immediately before the hearing on Motion
No. 82, Defendants’ counsel served links to dozens of sets of verified and unverified
discovery responses that report and recommendation Nos. 1 through 4 and 6 had required
Defendants to produce months earlier. Defendants still had not paid any of the monetary
sanctions imposed against them.
VII. Discovery Referee’s Report and Recommendation No. 11
In December 2021, the Referee issued report and recommendation No. 11,
the subject of this appeal. The Referee recommended that the trial court grant Motion
No. 82, impose monetary sanctions as requested in the amount of $37,575, and impose all
requested 11 issue sanctions.
The Referee prefaced the explanation for his ruling with these comments:
“Nobody could have anticipated that the task I originally agreed to take on would
continue to require the intervention of a Discovery Referee two years down the road.
Yes, COVID-19 has intervened, causing untold upheaval in the lives of everyone
globally, and particularly impacting our Civil Litigation processes.” The Referee firmly
believed, however, that Defendants “continuous dilatory conduct,” and not the COVID-
19 pandemic “is not the primary cause of why we are dealing with the issues raised in
Motion [No.] 82.”
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The Referee recognized that discovery had been “extensive” and Plaintiffs’
counsel “will not leave the proverbial stone unturned where the facts appear to warrant
excessive exploration.” But the Referee did not find that Plaintiffs had propounded
excessive discovery. Quite to the contrary, the Referee found: “The very nature of these
cases, given the complexities of the subject area and the heightened burden of proof,
require comprehensive discovery. The ‘business’ of caring for the elderly, infirm,
difficult patients who more often than not present with innumerable ‘co-morbidities’, add
extra layers that must be sorted through in the quest to find ‘the truth.’ Though
Defendants view it otherwise, ‘extensive’ discovery called for in this case does not equate
to excessive discovery.”
The Referee found Defendants had willfully failed to comply with their
discovery obligations: “Defendants . . . have hardly once fully provided timely Code
compliant responses to any discovery in this case. (This, apparently, is a pattern and
practice in several other cases in which these same Defendants are parties.) Now,
Defendants cry ‘foul’ because their strategy of continuous dilatory conduct — their
‘hiding the ball’ — has put them in a precarious position that directly affects their
defense at trial. Perhaps Defendants should have devoted their resources to providing
timely answers to difficult questions. Instead, Defendants have repeatedly disregarded
their obligations in Discovery and have repeatedly fought the Court Orders that tell them
they must comply. Defendants have even blatantly ignored the several warnings given
about the potential serious consequences that would likely follow if their abuse of
discovery continued.”
The Referee acknowledged that over the prior four years Defendants had
provided a great deal of discovery and many depositions had been taken. “[H]owever,”
the Referee stated, Defendants “ask the Court to ignore the fact that almost without
exception not one meaningful response to discovery has been timely provided” and “ask
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the Court to ignore Defendants’ continuous refusal to timely and voluntarily comply with
the recommendations of the Referee and the corresponding Orders of the Court.”
The Referee firmly rejected Defendants’ claim that they had satisfied their
discovery obligations with the eleventh hour “data dump.” The Referee found: “To
suddenly dump volumes of materials on Plaintiffs on the eve of the discovery and motion
cut off, leaving Plaintiffs without the ability to make any sense, let alone use, of those
materials, simply cannot pass muster as good faith compliance with Court Orders.” The
Referee found those discovery responses “should have been given long before now” and
“[p]roviding the ‘responses’ on the eve of the discovery and motion cut off renders these
responses of, at best marginal, utility.”
The Referee found Defendants had chosen to do things “their way” and
decided “the rules of discovery do not apply to them.” Choices are made with the
knowledge of their consequences, and “[i]f the discovery process is to have any meaning;
if Parties are to have any respect for Orders of the Court, then there must be
consequences for choices that are disrespectful of the process.” The Referee pointed out
that he had cautioned Defendants “many times” but they had “shown no regard” for those
cautions. Defendants had been ordered to pay monetary sanctions but had disregarded
those orders too and believed instead they could “conduct themselves as they wish[ed] in
discovery matters with impunity.”
The Referee concluded: “The message to Defendants ought to be that
severe sanctions are being imposed not to punish them for their abuse but because there
must be a remedy for such discovery abuse. . . . Monetary sanctions alone will not deter
future discovery abuse by these Defendants, as they will view it as minimal consequences
for their actions that they can afford to pay (if they actually pay monetary sanctions at
all). The ultimate decision — whether to grant the requested doomsday sanctions in
whole or in part — must rest with the Court. Defendants had demonstrated that they will
not respect any recommendations coming from me as Referee. [¶] I have been licensed
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to practice [law] in this State for nearly 44 years. For the past almost 20 years I have had
the privilege and honor to serve as a Neutral, sitting as Mediator, Arbitrator, and of
course, as Referee. Never have I seen such blatant disregard of discovery and discovery
Orders as the conduct by these Defendants. It is disrespectful to the Court, tantamount to
contemptuous conduct. It has directly affected the sanctity of our civil justice system and
has unfairly prejudiced Plaintiffs. Acknowledging the redundancy, from this Referee’s
view, there must be a remedy for such discovery abuse to preserve the integrity of our
civil justice system.” (Italics added.)
VIII. Trial Court Order on Report and Recommendation No. 11
Defendants filed objections to Report and Recommendation No. 11.
Plaintiffs filed a response to those objections.
Counsel had stipulated to continue the trial date from December 6, 2021 to
February 14, 2022. On January 25, 2022, Defendants applied ex parte to continue the
trial date on the ground their lead trial counsel was “seriously ill.” The trial court granted
the ex parte application and continued the trial to June 6, 2022.
On February 2, 2022, Defendants paid Plaintiffs $50,550 “for monetary
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sanctions.” Of that amount, $42,000 had been due and unpaid since July 2021.
On February 7, 2022, the trial court adopted and signed report and
recommendation No. 11. Report and recommendation No. 11 was entered as an order
that same day.
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Report and recommendation No. 6 had imposed $7,350 in sanctions, and
report and recommendation No. 7 had imposed $34,650 in sanctions. By minute order
entered on January 21, 2022, the trial court imposed another $8,550 in sanctions for
failing to produce witnesses for depositions. Those three sanction awards totaled
$50,550.
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IX. Defendants’ Motion for Reconsiderations
Defendants filed a motion for reconsideration of the order on report and
recommendation No. 11. They argued, among other things, that the trial continuance
mooted the “timing” concerns and the prejudice sustained by Plaintiffs as a result of
Defendants’ conduct. Plaintiffs argued in opposition that the trial continuance did not
extend the discovery cut off of November 8 and, therefore, trial continuance had no effect
on the finding that Defendants’ late production was of marginal utility. At the hearing,
Plaintiffs’ counsel asserted that Defendants had not complied fully with the discovery
orders and Defendants’ last-minute “data dump . . . did not produce all of the documents
that had been requested, there were still . . . 12 sets of unverified discovery, five of which
related to Forrest [L.] Preston, two additional sets of discovery that [were] never
answered, and the majority of that discovery . . . was 672 days late.”
The trial court denied Defendants’ motion for reconsideration. The court
found that Defendants had not made the initial showing for reconsideration required by
section 1008, many of Defendants’ arguments were “based on fundamental
misstatements of facts,” and other arguments were “little more than an attempt to reargue
the ruling.” The court also found: “As the Discovery Referee pointed out in his
statement as to why issue sanctions should be imposed for the repeated discovery abuse,
the Defendants have consistently acted as though the discovery rules and the orders of
the court did not apply to them. [The Referee] then went through an exhaustive list of the
discovery abuse spanning for two years—which he concluded was abuse by the
Defendants, not counsel, and was a calculated response to the elder abuse allegations
made against them. Defendants repeatedly failed to comply with discovery orders; the
issuance of monetary sanctions had not corrected their behavior and, as the Discovery
Referee opined and this court agreed, it was highly unlikely the Defendants were ever
going to comply with any discovery no matter how many chances they were afforded by
the court. . . . This court has signed numerous orders based on the Discovery Referee’s
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various Recommendations—some after a hearing—and it finds, based on its own review
of the record, that the Discovery Referee’s conclusions are accurate and should be
followed.”
The trial court concluded: “At some point, it is flagrant injustice not to
impose issue sanctions. Such an order for issue[] sanctions is not issued lightly. But the
time [has] finally come.”
Defendants timely appealed from the order entered on February 7, 2022, on
report and recommendation No. 11. The notice of appeal states: “This appeal will
include both the monetary sanctions portion of the Order and all other portions of the
Order, including the issue preclusion sanctions imposed therein, which are based on the
same conduct that led to the issue preclusions sanctions, and therefore inextricably
intertwined with the monetary sanctions and also immediately appealable.”
STANDARD OF REVIEW
“Orders regarding discovery are reviewed under the abuse of discretion
standard. [Citations.] The trial court has broad discretion in deciding whether to impose
sanctions and in setting the amount of monetary sanctions.” (Cornerstone Realty
Advisors, LLC v. Summit Healthcare REIT, Inc. (2020) 56 Cal.App.5th 771, 789
(Cornerstone).)
The test for abuse of discretion is traditionally recited as whether the trial
court’s decision exceeded the bounds of reason. (Shamblin v. Brattain (1988) 44 Cal.3d
474, 478–479.) In more practical terms, the abuse of discretion standard measures
whether, in light of the evidence, the trial court’s decision “‘falls within the permissible
range of options set by the legal criteria.’” (Bank of America, N.A. v. Superior Court
(2013) 212 Cal.App.4th 1076, 1089.) The scope of the court’s discretion is limited by
law governing the subject of the action taken. (Ibid.) An action that transgresses the
bounds of the applicable legal principles is deemed an abuse of discretion. (Ibid.) A trial
18
court’s decision is an abuse of discretion if it is based on an error of law. (In re Tobacco
II Cases (2009) 46 Cal.4th 298, 311; Pfizer Inc. v. Superior Court (2010) 182
Cal.App.4th 622, 629.)
“The trial court’s factual findings are reviewed under the substantial
evidence standard while the trial court’s legal conclusions are reviewed de novo.
[Citation.] It is up to the trial court to weigh the evidence, resolve conflicts in it, and
assess the credibility of witnesses. [Citation.] The reviewing court resolves any
evidentiary conflicts most favorably to the trial court’s ruling [citation], and, if more than
one reasonable inference can be deduced from the facts, the reviewing court must accept
the inference supporting the trial court’s decision [citation].” (Cornerstone, supra, 56
Cal.App.5th at p. 789.)
DISCUSSION
I. Plaintiffs’ Motion for Partial Dismissal of the Appeal is Granted
Before briefing in this matter commenced, Plaintiffs filed a motion for
dismissal of Defendants’ appeal from the order imposing issue sanctions on the ground it
was not an appealable order. Plaintiffs argued the appeal from the order imposing issue
sanctions was severable from the order imposing monetary sanctions, which was directly
appealable, and the Court of Appeal may order partial dismissal of a severable appeal.
After receiving Defendants’ opposition to the motion, we issued an order
stating we would decide Plaintiffs’ motion to dismiss in conjunction with the merits of
the appeal. Our consideration of the merits of the appeal leads us now to conclude the
motion for partial dismissal must be granted.
A. The Order Imposing Issue Sanctions Is Not Directly Appealable
“The right to appeal is wholly statutory.” (Dana Point Safe Harbor
Collective v. Superior Court (2010) 51 Cal.4th 1, 5.) A reviewing court has jurisdiction
19
only of an appeal from a judgment or order made expressly appealable by statute. (Griset
v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696.) “Unless an order is
expressly made appealable by a statute, this court has no jurisdiction to consider it.”
(Levinson Arshonsky & Kurtz LLP v. Kim (2019) 35 Cal.App.5th 896, 903.)
Under section 904.1, an appeal may be taken from “an interlocutory
judgment directing payment of monetary sanctions by a party or an attorney for a party if
the amount exceeds five thousand dollars ($5,000)” (id., subd. (a)(11)) or from “an order
directing payment of monetary sanctions by a party or an attorney for a party if the
amount exceeds five thousand dollars ($5,000)” (id., subd. (a)(12)). There is no
comparable statutory right to appeal from a prejudgment discovery order. (Montano v.
Wet Seal Retail, Inc. (2015) 7 Cal.App.5th 1248, 1259; Doe v. United States Swimming,
Inc. (2011) 200 Cal.App.4th 1424, 1432 (Doe).) Instead, discovery orders are appealable
as part of an appeal from a final judgment. (Hanna v. Little League Baseball, Inc. (2020)
53 Cal.App.5th 871, 875, fn. 6; Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1060.)
Thus, the monetary sanctions imposed by the order on report and
recommendation No. 11 are directly appealable under section 904.1, subd. (a)(11) and
(12). But other than the monetary sanctions, the order on Report and Recommendation
No. 11, including the issue sanctions, is not directly appealable.
B. The Monetary Sanctions and the Issue Sanctions Are Not Inextricably
Intertwined
A limited exception has been recognized to permit review of an order
granting terminating sanctions as part of an appeal from an order directing payment of
monetary sanctions in an amount greater than $5,000 if the monetary sanctions were
based on the same conduct that led to the terminating sanctions and “the two are
inextricably intertwined.” (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th
20262, 276 (Mileikowsky), disapproved on another ground in Mileikowsky v. West Hills
Hospital & Medical Center (2009) 45 Cal.4th 1259, 1273.)
In Mileikowsky the plaintiff appealed from the trial court order issuing
terminating sanctions against the plaintiff for repeated discovery violations and awarding
the defendants $8,500 in monetary sanctions. (Mileikowsky, supra, 128 Cal.App.4th at
pp. 264, 273-275.) The Court of Appeal denied the defendants’ motion to dismiss the
appeal but in doing so limited the scope of appeal to issues pertaining to the monetary
sanctions. (Id. at pp. 275-276.) But when deciding the merits of the appeal, the Court of
Appeal realized “the monetary sanctions were based on the same conduct that led to
terminating sanctions, and the two are inextricably intertwined.” (Id. at p. 276.) In
particular, the plaintiff had challenged the monetary sanctions on the ground they were
based on the fees and costs incurred in prosecuting the motion for terminating sanctions,
and that motion should have been denied. (Ibid.) The court therefore proceeded to
address whether the motion for terminating sanctions was well taken. (Id. at p. 276.)
“[A]lthough we attempted to limit our review to issues pertaining to the monetary
sanctions awarded, our reasoning necessarily encompasses the propriety of granting
terminating sanctions.” (Id. at p. 264.)
Defendants argue Mileikowsky grants this court jurisdiction to decide the
appeal from the issue sanctions because the terminating sanctions and the monetary
sanctions were based on the same conduct. Defendants ignore the second half of the
condition; that is, the monetary sanctions and terminating sanctions “are inextricably
intertwined.” In Mileikowsky, the plaintiff challenged the monetary sanctions and the
issue sanctions on a single ground—the trial court erred by granting the motion for
terminating sanctions. (Mileikowsky, supra, 128 Cal.App.4th at pp. 276, 280.) The
propriety of both the terminating sanctions and the monetary sanctions therefore
depended on whether the trial court erred by granting the motion for terminating
sanctions. The terminating sanctions and the monetary sanctions were inextricably
21
intertwined because a decision on the appeal from the monetary sanctions also resolved
the appeal from the terminating sanctions.
Although the monetary sanctions and the issue sanctions in the present case
are, to a large extent, based on the same conduct, they are not inextricably intertwined.
Defendants are not arguing the trial court should have denied Plaintiffs’ Motion No. 82—
an argument which, if successful, would resolve the propriety of both monetary and issue
sanctions. Monetary sanctions and issue sanctions are different remedies, imposed for
different reasons, and the propriety of each is assessed under different factors. As we
shall explain, our reasoning for upholding the monetary sanctions does not “necessarily
encompass[]” the propriety of imposing issue sanctions. (Mileikowsky, supra, 128
Cal.App.4th at p. 264.)
Because there is no question that Defendants unsuccessfully opposed
Motion No. 82, the only issue with respect to imposition of monetary sanctions is
whether the trial court should have found Defendants acted with substantial justification
or other circumstances would make monetary sanctions unjust. (Cornerstone, supra, 56
Cal.App.5th at p. 790.) Defendants argue they acted with substantial justification
because they ultimately provided a full though untimely production, Plaintiffs had
propounded excessive discovery, the COVID-19 pandemic and changes in counsel
impaired Defendants’ ability to comply with their discovery obligations, they had
produced an enormous amount of documents, and the trial court did not independently
analyze report and recommendation No. 11.
The propriety of the issue sanctions depends on the resolution of issues and
assessment of factors other than whether Defendants acted with substantial justification
or monetary sanctions otherwise would be unjust. Defendants challenge the issue
sanctions on the following grounds: Issue sanctions can only be imposed after the
sanctioned party has violated a court order compelling discovery; any prejudice to
Plaintiffs from late production of discovery was cured by the continuance of the trial
22
date; the issue sanctions are punitive and do not fit the violation; the issue sanctions
provided Defendants with a windfall; there is no connection between any specific
discovery that was untimely and the particular issue sanction imposed; and, the trial court
did not independently consider the propriety of issue sanctions but “rubber stamped” the
Referee’s report. Of those grounds, only the final one and, to a limited extent, the matter
of prejudice, apply to the monetary sanctions, and our analysis and application of those
two grounds are not determinative of the propriety of the issue sanctions.
Our analysis supporting the affirmance of the monetary sanctions
demonstrates they are untwined from the issue sanctions. In part II of the Discussion
section, we reject each of the grounds on which Defendants challenge the monetary
sanctions and conclude the trial court did not err by declining to find that Defendants
acted with substantial justification or that other circumstances would have made
monetary sanctions unjust. Our analysis and the affirmance of monetary sanctions does
not lead inextricably to the resolution of the propriety of the issue sanctions because we
do not address several issues necessary to determine the propriety of their issuance.
The appeal from the order imposing monetary sanctions therefore can be
examined and resolved independently of the order imposing issue sanctions. Put another
way, we can, and do, resolve the issue of the propriety of the monetary sanctions without
also resolving the propriety of the issue sanctions.
An analogous case is Doe, supra, 200 Cal.App.4th 1424. In Doe, the trial
court imposed monetary sanctions in the amount of $5,250 against the defendant after
finding the defendant, without substantial justification, had failed to comply with an
earlier discovery order and had opposed the plaintiff’s motion to compel compliance with
that order. (Doe, at pp. 1427, 1432.) The trial court directed the defendant to comply
with the prior discovery order by producing documents regarding claims of sexual
harassment or abuse by its coaches with redactions limited to specific, identifying
information. (Id. at pp. 1430-1431.) The defendant appealed from an order “‘regarding
23
the production of documents and payment of monetary sanctions in the amount of
$5,250.00.’” (Id. at p. 1432.) The plaintiff moved for dismissal of the appeal insofar as
it concerned the nonappealable provisions of the discovery order. (Ibid.)
Although the Court of Appeal declined to dismiss the appeal, it concluded
that “issues unrelated to the propriety of the monetary sanction are not cognizable” and
limited its review to “that portion of the [discovery] order imposing a monetary sanction
of over $5,000.” (Doe, supra, 200 Cal.App.4th at p. 1433.) The Doe court disagreed
with the defendant’s assertion that, as in Mileikowsky, the appeal implicated the entire
discovery order. (Doe, at p. 1433.) The propriety of the sanctions order turned on
whether the defendant had acted with substantial justification—that is; whether the
defendant had reasonably interpreted the trial court’s prior discovery and protective
orders—and whether the trial court should have conducted an in camera inspection before
imposing monetary sanctions. (Ibid.) Those issues were not intertwined with the issue of
whether the order compelling compliance with the prior discovery order was proper in
light of third party privacy rights. (Ibid.)
The present appeal, as in Doe, and unlike Mileikowsky, does not implicate
the entire discovery order. The propriety of the monetary sanctions turns on whether
Defendants acted with substantial justification and whether monetary sanctions otherwise
would be unjust. Those issues are not the same as, and not intertwined with, the issue
whether imposing issue sanctions on top of the monetary sanctions was proper.
Defendants argue “public policy consideration here counsel strongly in
favor of addressing the propriety of the sanctions order once in a single appeal.” The
right to appeal is entirely statutory: Public policy alone cannot confer the right to an
immediate appeal of a statutorily nonappealable order.
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C. Partial Dismissal Is Appropriate Because the Appeals Are Severable
“Respondent can move for partial dismissal of a portion of the appeal, as
long as the resulting partial appeal would be from severable portions of the judgment.”
(Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2022)
¶ 5:38, p. 5-23.) “‘The test of whether a portion of a judgment appealed from is so
interwoven with its other provisions as to preclude an independent examination of the
part challenged by the appellant is whether the matters or issues embraced therein are the
same as, or interdependent upon, the matters or issues which have not been attacked.’”
(Gonzalez v. R.J. Novick Construction Co., Inc. (1978) 20 Cal.3d 798, 805-806.)
Dismissal of the appeal from the issue sanctions is permissible because the
resulting appeal would be from the imposition of monetary sanctions, which is a
severable part of the order on report and recommendation No. 11. An order awarding
sanctions in an amount greater than $5,000 is by statute severable and immediately
appealable. (§ 904.1, subd. (a)(11) & (12).) As we have explained, the appeal from the
order imposing monetary sanctions can be examined independently of the order imposing
issue sanctions.
II. The Trial Court Did Not Err by Imposing Monetary Sanctions
Code of Civil Procedure section 2030.030 authorizes a trial court to impose
monetary sanctions, issue sanctions, evidence sanctions, or terminating sanctions against
anyone engaging in conduct amounting to a “misuse of the discovery process.” (Ibid.)
As relevant here, misuses of the discovery process include “[f]ailing to respond or to
submit to an authorized method of discovery” (§ 2023.010, subd. (d)); “[m]aking, without
substantial justification, an unmeritorious objection to discovery” (id., subd. (e));
“[m]aking an evasive response to discovery” (id., subd. (f)); “[d]isobeying a court order
to provide discovery” (id., subd. (g)); and “[m]aking or opposing, unsuccessfully and
without substantial justification, a motion to compel or to limit discovery” (id., subd. (h)).
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“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.” (§ 2023.030, subd. (a).) Reasonable expenses may include attorney fees, filing
fees, referee fees, and other costs incurred. (Ibid.) A court shall impose a monetary
sanction against “any party, person, or attorney” who unsuccessfully opposes a motion to
compel a further response to interrogatories, a motion to compel a further response to an
inspection demand, a motion to compel compliance with an inspection demand, or a
motion to compel further response to requests for admissions “unless [the court] finds
that the one subject to the sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust.” (§§ 2030.300, subd. (d),
2031.310, subd. (h), 2031.320, subd. (b), 2033.290, subd. (d).)
Monetary sanctions, if warranted, are mandatory: “If a monetary sanction is
authorized, ‘the court shall impose that sanction’ unless the court finds that the person
subject to the sanction either acted with substantial justification or imposition of
sanctions would be unjust under the circumstances. [Citation.] ‘[M]onetary sanctions, in
an amount incurred, including attorney fees, by anyone as a result of the offending
conduct, must be imposed unless the trial court finds the sanctioned party acted with
substantial justification or the sanction is otherwise unjust.’” (Cornerstone, supra, 56
Cal.App.5th at p. 790.)
Defendants unsuccessfully opposed Plaintiffs’ motion No. 82. Thus, the
monetary sanctions were mandatory unless the trial court found Defendants had acted
with substantial justification or that other circumstances would make imposition of
monetary sanctions unjust. Neither the trial court nor the Referee made either finding; to
the contrary they concluded the maximum amount of monetary sanctions was warranted.
Defendants argue they acted with substantial justification or monetary
sanctions were unjust, for six reasons: (1) Defendants provided lengthy discovery
26
responses which, though untimely, satisfied their discovery obligations under report and
recommendation Nos. 1 through 4 and 6; (2) Defendants were subject to an “inordinate
discovery burden not proportional to the needs of this case”; (3) Defendants undertook
“extraordinary efforts to comply with the discovery orders” amidst the disruptions caused
by the COVID-19 pandemic; (4) Defendants twice had to change counsel during the
course of the litigation; (5) due to the continuance of trial, Plaintiffs suffered no prejudice
from Defendants’ tardy production of documents; and (6) the trial court “made no
attempt to independently analyze the discovery Referee’s findings or to consider the basis
for the same, including under the new circumstances in the case.”
We first address Defendants’ sixth contention—that the trial court did not
independently analyze report and recommendation No. 11—because it impugns the trial
court’s integrity. A trial court must independently review a referee’s report and may not
“abdicate[] its judicial responsibility by simply entering an order on the referee’s report
as though it was a binding decision of the court itself.” (Rockwell Internat. Corp. v.
Superior Court (1994) 26 Cal.App.4th 1255, 1270.) Defendants are claiming the trial
court so abdicated its responsibility when, they say, it “simply rubber-stamped verbatim
the issue sanctions requested by Plaintiffs.” That is a challenge to the court’s integrity, a
serious charge indeed. This court has made clear, “[i]mpugning the integrity of the trial
judge without facts is rarely a good idea [citation], and serious accusations against a trial
judge, such as these, had better be supported by concrete evidence.” (Cornerstone,
supra, 56 Cal.App.54th at p. 793.) The only evidence offered by Defendants is that the
trial court approved report and recommendation No. 11 without change. The court’s
approval of a referee’s report and recommendation does not establish the trial court failed
to comply with its obligation to independently review the report and consider the
referee’s findings.
Moreover, the record affirmatively establishes that the trial court fulfilled
its duty to independently consider report and recommendation No. 11. During the
27
hearing on Defendants’ motion for reconsideration, the trial court explained: “I started in
this case about discovery referee report, I think, number 7—number 6, number 7, around
in there. And I read the referee’s report, and I thought, gee that seems awfully harsh.
And then I started reading the old reports. And then as the reports kept coming in, you
realize the referee truly had his pulse on this particular case, and his final
recommendation, I think is absolutely correct. I don’t really think there is much to
disagree about on it.”
Defendants argue monetary sanctions against them were impermissible
because on the night before the hearing on Motion No. 82 they served several lengthy
discovery responses which they claim constituted a “full but untimely production.”
Untimely compliance is not compliance. And the untimeliness in this case was extreme
and the product of bad faith. For months, in some cases years, Defendants failed to
produce documents and discovery responses sought by discovery requests and as required
by court orders. Only after Plaintiffs were forced to bring their Motion No. 82, and only
on the eve of the hearing on the motion, did Defendants produce the long-awaited and
bitterly fought for discovery responses. The finding of the referee and the trial court,
quoted in the introduction section and part VII of the history of discovery disputes
section, bears repeating: “To suddenly dump volumes of materials on Plaintiffs on the
eve of the discovery and motion cut off . . . simply cannot pass muster as good faith
compliance with Court Orders.”
It is highly disputed whether the last-minute production was full. At the
hearing on Defendants’ motion for reconsideration, Plaintiffs’ counsel stated that 12 sets
of discovery remained unverified and two sets were never answered. Defendants contend
otherwise. We need not decide whether the last-minute discovery production was full: It
is enough that it was untimely in the extreme and only done once Plaintiffs had incurred
the cost of bringing a motion to compel.
28
Defendants argue their actions were substantially justified because they had
been subject to “an inordinate discovery burden,” had produced over 25,000 pages of
documents, and had submitted more than 40 people to depositions. The Referee and the
trial court, while recognizing Plaintiffs had engaged in extensive discovery, found that
Plaintiffs’ discovery was not excessive but was justified by “the complexities of the
subject area and the heightened burden of proof.” Defendants have offered no reason for
us to disagree with that finding. Defendants’ participation in discovery and compliance
with some discovery obligations did not excuse compliance with other discovery
obligations. Defendants did not have the option to pick and choose which discovery
obligations to honor.
If Defendants believed discovery was oppressive, their recourse was to seek
a protective order. At one-point Defendants did move for a protective order “to restrict
the frequency and extent of Plaintiffs’ discovery.” (Some capitalization omitted.) By
approving report and recommendation No. 8, the trial court denied that motion with the
comment that “Defendants have consistently, repeatedly, unabashedly, and without
apology disregarded nearly every Report & Recommendations and the corresponding
Court Orders.”
Defendants contend they acted with substantial justification because the
COVID-19 pandemic severely impaired their ability to comply with their discovery
obligations. The Referee and the trial court firmly rejected that contention. While
recognizing the upheaval caused by the COVID-19 pandemic, the Referee and the trial
court found it was not the cause of Defendants’ failure to comply with discovery orders;
instead, the Referee and the trial court found that Defendants had engaged in a strategy of
“continuous dilatory conduct.”
Defendants contend they acted with substantial justification because “in the
middle of the proceedings below, [Defendants] lost their counsel not once but two times.”
This is no justification, and it is not true. In August 2020, Defendants associated a
29
second law firm to represent them in this matter. Within a week, Defendants’ original
counsel substituted out, leaving the associated law firm as counsel of record. Defendants
were never left without counsel, and the substitution was accomplished over a year before
Plaintiffs brought Motion No. 82.
The second loss of counsel was in January 2022—after the Referee had
prepared and submitted report and recommendation No. 11—when Defendants’ primary
trial counsel claimed to be seriously ill. Due to counsel’s illness, Defendants sought a
trial continuance but in doing so never mentioned whether counsel’s illness would affect
their ability to comply with their ongoing discovery obligations. The attorney who had
appeared on Defendants’ behalf through most of the discovery disputes and had signed
most of Defendants’ oppositions to Plaintiffs’ discovery motions was not the reason for
the trial continuance.
Finally, Defendants argue they were not subject to monetary sanctions
because, due to the continuance of trial, Plaintiffs suffered no prejudice from Defendants’
tardy production of documents. A prevailing party on a motion to compel further
responses to discovery requests need not show prejudice in order to recover monetary
sanctions. Successfully bringing the motion is sufficient to entitle the prevailing party to
recover monetary sanctions unless the trial court finds the party unsuccessfully opposing
the motion acted with substantial justification or the sanction “‘is otherwise unjust.’”
(Cornerstone, supra, 56 Cal.App.5th at p. 790.)
Even if prejudice were somehow relevant, the trial continuance in this case
was unrelated to whether Defendants acted with substantial justification in opposing
Motion No. 82 or in the way they saw fit to comply with their discovery obligations.
Monetary sanctions are intended to compensate a litigant for expenses incurred as a result
of another litigant’s misuse of the discovery process. (§ 2023.030, subd. (a).) As a result
of Defendants’ misuse of the discovery process, Plaintiffs were forced to incur the
30
expense of bringing and pursuing Motion No. 82, and those expenses were incurred long
before, and irrespective of, the later continuance of the trial date.
DISPOSITION
The order imposing monetary sanctions is affirmed. The appeal is
dismissed in all other respects. Respondents shall recover costs on appeal.
SANCHEZ, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
DELANEY, J.
31