SCHORR LAW VS E. ROBERT SORACCO

Tentative Rulings

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Case Number: 18STLC09449 Hearing Date: October 28, 2021 Dept: 26

Schorr Law, APC v. Soracco,\r\net al. 18STLC09449

MOTION FOR TERMINATING SANCTIONS

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(CCP\r\n§ 2023.010)

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TENTATIVE RULING:

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Plaintiff Schorr Law, APC’s Motion for Terminating Sanctions\r\nis DENIED.

ANALYSIS:

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Plaintiff Schorr Law (“Plaintiff”) initiated this action\r\nagainst its former client, Defendant E. Robert Soracco (“Defendant”), on July\r\n13, 2018, for failure to pay attorney’s fees for the legal services it\r\nprovided. Defendant filed a Cross-Complaint on November 28, 2018 for breach of\r\nthe retainer agreement, among other claims. On January 29, 2019, the court sustained Plaintiff’s demurrer to the\r\nCross-Complaint without leave to amend.

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On August 19, 2020,\r\nthe Court granted Plaintiff’s\r\nmotion to compel Defendant’s appearance at deposition and for an award of\r\nmonetary sanctions. (Minute Order, 08/19/20.) Plaintiff filed the instant Motion\r\nfor Terminating Sanctions on February\r\n11, 2021.

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The action\r\ncame for trial on June 29, 2021. Upon Defendant’s failure to appear, the Court\r\ntook the trial off calendar and struck Defendant’s Answer. (Minute Order,\r\n06/29/21.) The Court instructed Plaintiff to proceed with default and\r\ndefault judgment and set an Order to Show Cause Re Entry of Default Judgment or\r\nDismissal for September 28, 2021.

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On September 28, 2021, the Court vacated its earlier ruling\r\nstriking Defendant’s Answer and placed the instant Motion for Terminating\r\nSanctions back on calendar. (Minute Order, 09/28/21.)

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Discussion

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Where a party willfully disobeys a discovery order, courts\r\nhave discretion to impose terminating, issue, evidence or monetary sanctions.\r\n(Code Civ. Proc., §§ 2023.010, subds. (d), (g); R.S. Creative, Inc. v.\r\nCreative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) The court should\r\nlook to the totality of the circumstances in determining whether terminating\r\nsanctions are appropriate. (Lang v. Hochman (2000) 77 Cal.App.4th 1225,\r\n1246.) Ultimate discovery sanctions are justified where there is a willful\r\ndiscovery order violation, a history of abuse, and evidence showing that less\r\nsevere sanctions would not produce compliance with discovery rules. (Van\r\nSickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) “[A] penalty as\r\nsevere as dismissal or default is not authorized where noncompliance with\r\ndiscovery is caused by an inability to comply rather than willfulness or bad\r\nfaith.” (Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.) “The court\r\nmay impose a terminating sanction by one of the following orders:

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(1) An\r\norder striking out the pleadings or parts of the pleadings of any party\r\nengaging in the misuse of the discovery process.

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(2) An\r\norder staying further proceedings by that party until an order for discovery is\r\nobeyed.

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(3) An\r\norder dismissing the action, or any part of the action, of that party.

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(4) An\r\norder rendering a judgment by default against that party.”

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(Code Civ. Proc., § 2023.030, subd. (d).)

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Discussion

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The Court granted Plaintiff’s motion compelling Defendant’s\r\nappearance at deposition and awarded monetary sanctions against Defendant on\r\nAugust 19, 2021. (Minute Order, 08/19/21.) Plaintiff was ordered to give\r\nnotice. (Ibid.) Defendant failed to appear when Plaintiff re-noticed the\r\ndeposition for November 23, 2021. (Motion, Goldstein Decl., ¶¶14-16 and Exhs.\r\nB-D.) To date, Defendant has not complied with the Court’s orders nor paid the\r\nmonetary sanctions as required. (Id. at ¶16.)

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The Court finds that Plaintiff has not demonstrated terminating\r\nsanctions are warranted for Defendant’s non-compliance. Plaintiff has not\r\ndemonstrated that it gave notice of the Court’s August 19, 2021 to Defendant,\r\nas ordered. No notice of ruling and proof of service was filed with the Court,\r\nattached to the instant Motion, nor attested to in the supporting declaration\r\nof Plaintiff’s counsel. Without notice of the order, the Court cannot find that\r\nDefendant’s failure to comply was willful as required for an imposition of\r\nterminating sanctions.

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Nor does Defendant’s other purported misconduct—filing what\r\nPlaintiff deemed to be frivolous pleadings and motions, and failing to respond\r\nto requests for admission—create a basis for terminating discovery sanctions.\r\nAs stated above, the harshness of this penalty is reserved for conduct that\r\namounts to a willful violation of a court discovery order.

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Conclusion

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Plaintiff Schorr Law, APC’s Motion for Terminating is\r\nDENIED.

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Court clerk to give notice.

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Case Number: 18STLC09449    Hearing Date: August 19, 2020    Dept: 26

MOTION TO COMPEL DEPOSITION; TERMINATING SANCTIONS

(CCP §§ 2025.420, 2023.010)

TENTATIVE RULING:

PLAINTIFF SCHORR LAW, APC’S MOTION TO COMPEL ATTENDANCE AT DEPOSITION AND REQUEST FOR SANCTIONS IS GRANTED. DEFENDANT E. ROBERT SORACCO IS ORDERED TO APPEAR FOR DEPOSITION AT A DATE AND TIME TO BE NOTICED BY PLAINTIFF WITHIN THE NEXT 20 DAYS. DEFENDANT IS FURTHER ORDERED TO PAY SANCTIONS OF $945.00 TO PLAINTIFF’S COUNSEL WITHIN 30 DAYS’ NOTICE OF THIS ORDER. PLAINTIFF’S MOTION IN THE ALTERNATIVE FOR TERMINATING SANCTIONS IS DENIED.

ANALYSIS:

Plaintiff Schorr Law (“Plaintiff”), a law firm, initiated this action against its former client, Defendant E. Robert Soracco (“Defendant”), on July 13, 2018 for failure to pay attorney’s fees for the legal services provided. Defendant then filed a Cross-Complaint on November 28, 2018 for breach of the retainer agreement, among other claims. On January 29, 2019, the court sustained Plaintiff’s demurrer to the Cross-Complaint without leave to amend. On July 24, 2019, the Court denied Defendant’s motion to dismiss the Complaint. On November 26, 2019, Plaintiff filed the instant Motion to Compel Deposition, or in the alternative, for Terminating Sanctions; and Request for Monetary Sanctions. To date, no opposition has been filed.

Motion to Compel Deposition and Request for Sanctions

Code of Civil Procedure section 2025.450, section (a) states in relevant part:

If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

(Code Civ. Proc., § 2025.450, subd. (a).) The motion must also “set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice” and “be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2025.450, subds. (b)(1), (2).) “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., § 2016.040.)

A court shall impose monetary sanctions if the motion to compel is granted unless the one subject to sanction acted with substantial justification or other circumstances would make the imposition of the sanction unjust. (Code. Civ. Proc., § 2025.450, subd. (g)(1).)

Plaintiff presents evidence that Defendant failed to appear for his properly noticed deposition on November 1, 2019. (Motion, Schorr Decl., ¶¶3-8 and Exhs. A-B.) In fact, Defendant refused to appear until after January 12, 2020 due to health issues. (Id. at ¶8 and Exh. B.) Defendant, however, did not offer any details or proof regarding these health issues. (Ibid.) Following Defendant’s failure to appear, Plaintiff called Defendant on November 15, 2019 and left a voicemail seeking alternative deposition dates. (Id. at ¶9.) This satisfies the statute’s meet and confer requirement. Defendant, however, did not respond to reschedule the deposition nor has he filed an opposition to the instant Motion to Compel Deposition. (Ibid.)

Sanctions are warranted pursuant to Code of Civil Procedure, section 2023.030, subdivision (d) and section 2025.450, subdivision (g)(1,) and have been properly noticed. However, the Court finds the amount sought is excessive. Using a lodestar calculation, sanctions are awarded against Defendant in the reduced amount of $945.00 based on three hours of attorney time billed at $295.00 per hour and $60.00 for the filing fee. (Id. at ¶¶15, 17.)

Based on the Defendant’s failure to appear for the properly noticed deposition and continuing lack of cooperation in rescheduling, the Motion to Compel Attendance at Deposition and Request for Sanctions is GRANTED. DEFENDANT IS ORDERED TO APPEAR FOR DEPOSITION AT A DATE AND TIME TO BE NOTICED BY PLAINTIFF WITHIN THE NEXT 20 DAYS. SANCTIONS OF $945.00 ARE TO BE PAID TO PLAINTIFF’S COUNSEL WITHIN 30 DAYS’ NOTICE OF THIS ORDER.

Motion for Terminating Sanctions

In light of the order compelling Defendant’s deposition, the alternative request for terminating sanctions is denied. The Court further notes that terminating sanctions are only appropriate when a party willfully disobeys a discovery order. (Code Civ. Proc., §§ 2023.010, subds. (d), (g); 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.) Here, Plaintiff has not shown that Defendant failed to comply with any order to produce discovery.

Conclusion

PLAINTIFF SCHORR LAW, APC’S MOTION TO COMPEL ATTENDANCE AT DEPOSITION AND REQUEST FOR SANCTIONS IS GRANTED. DEFENDANT E. ROBERT SORACCO IS ORDERED TO APPEAR FOR DEPOSITION AT A DATE AND TIME TO BE NOTICED BY PLAINTIFF WITHIN THE NEXT 20 DAYS. DEFENDANT IS FURTHER ORDERED TO PAY SANCTIONS OF $945.00 TO PLAINTIFF’S COUNSEL WITHIN 30 DAYS’ NOTICE OF THIS ORDER. PLAINTIFF’S MOTION IN THE ALTERNATIVE FOR TERMINATING SANCTIONS IS DENIED.

Moving party to give notice.

Case Number: 18STLC09449    Hearing Date: December 10, 2019    Dept: 94

MOTION TO DEEM THE TRUTH OF MATTERS IN REQUESTS FOR ADMISSIONS TO DEFENDANT AS ADMITTED AND FOR MONETARY SANCTIONS

(CCP § 2033.280)

TENTATIVE RULING:

Plaintiff Schorr Law, APC’s Motion to Deem the Truth of Matters Specified in Requests for Admissions to Defendant as Admitted and for Monetary Sanctions is GRANTED.

ANALYSIS:

I. Background

Plaintiff Schorr Law (“Plaintiff”), a law firm, initiated this action against its former client, Defendant E. Robert Soracco (“Defendant”), on July 13, 2018 for failure to pay attorney’s fees for the legal services provided. Defendant then filed a Cross-Complaint on November 28, 2018 for breach of the retainer agreement, among other claims. On January 29, 2019, the court sustained Plaintiff’s demurrer to the Cross-Complaint without leave to amend.

On June 13, 2019, Plaintiff served Requests for Admissions, Set One, on Defendant E. Robert Sorraco (“Defendant”). (Marquez Decl. ¶ 3, Exh. 1.) To date, Plaintiff has not received any discovery responses to the propounded discovery requests from Defendant. (Id. at ¶ 6.) As a result, Plaintiff filed the instant Motion to Deem the Truth of Matters Specified in Requests for Admissions to Defendant as Admitted and for Monetary Sanctions (the “Motion”) on October 24, 2019.

II. Analysis & Order

 

Defendant has failed to respond to Plaintiff’s Requests for Admissions. Accordingly, the unopposed Motion is GRANTED. Pursuant to CCP § 2033.280, the truth of the matters specified in Plaintiff’s Requests for Admissions to Defendant is hereby deemed admitted.

As the Motion has been granted, monetary sanctions are mandatory under CCP § 2033.280(c). Given the simplicity of the Motion and the lack of opposition and reply, the Court awards Plaintiff $560 ($250/hr. x 2 hrs., plus $60 filing fee) in reasonable attorney’s fees and costs as monetary sanctions against Defendant. Sanctions are to be paid within thirty (30) days from the date of Plaintiff serving a notice of this Order on Defendant.

Moving party is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCdept94@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.