CHESTER M. HANKS VS KIANA PARKER

Tentative Rulings

Case Number: *******8617 Hearing Date: June 13, 2023 Dept: P

Tentative Ruling

Hanks v. Parker, Case No. *******8617

Hearing Date June 13, 2023

Plaintiff Hanks’ Motion to Compel Further Discovery Responses

On May 4, 2022 the court granted plaintiff Hanks’ motions to compel requiring defendant Parker to provide further responses to discovery and appear for deposition. On October 6, 2022 Hanks moved for terminating sanctions, arguing Parker failed to comply with the May 4, 2022 order. The court denied terminating sanctions but ordered Parker to supplement responses and appear for deposition within 30 days.

Hanks moved again for terminating sanctions, arguing Parker failed to adequately supplement responses. On April 19, 2023 the court declined to issue terminating sanctions but agreed to re-consider the motion as a motion to compel further discovery responses. Parker was given leave to file a new opposition.

Deposition

On October 6, 2022 the court ruled on Hanks’ prior motion for terminating sanctions. Defendant Parker was ordered to “make herself available for deposition within thirty days.” The order stated “[i]f defendant fails to appear, plaintiff may renew this motion.” 10/6/22 order, pg. 3.

Parker’s deposition has not yet taken place. Hanks’ counsel states he chose not to schedule Parker’s deposition until she adequately responded to the outstanding requests for production of documents and interrogatories. Kernan declaration at 32-33. Parker has not “failed to appear” for deposition; rather Kernan made a tactical choice not to notice it until he is satisfied with Parker’s responses.

In opposition, Parker states the parties should “proceed to finish discovery through deposition.” The parties are ordered to complete depositions of Parker and Hanks by July 13, 2023.

Form Interrogatories

In its October 6, 2022 ruling on Hanks’ terminating sanctions ruling, the court ordered Parker to provide supplemental responses on or before November 7, 2022. Hanks concedes Parker supplemented her production on November 8, 2022 (Separate statement pgs. 5-11), but argues the supplemental production is insufficient.

Form interrogatory no. 2.3, seeks information regarding Parker’s driver’s license. Parker’s supplemental response states she had a license, but the wallet containing it was stolen. This partial response evades several of the questions that make up interrogatory no. 2.3. Parker is to make a good-faith effort to respond. She fails to state whether she attempted to find the license number or whether there were restrictions on the license. Parker should be able to answer both questions.

In her new opposition filed 6/4/2023, Parker states she amended discovery responses with her Texas Driver’s License number. Additionally, she states she has an appointment to obtain another copy of her drivers’ license. This resolves the issues identified.

Form interrogatories 6.4 and 6.5 request information related to medical treatment received and medications taken. Parker’s response refers to medical records and states Hanks’ father referred her to a “spiritual healer.” She fails to provide identifying information and does not state she attempted to determine his name or contact information. Regarding 6.5 Parker states she was prescribed an unidentified anti-anxiety medication from a “Dr. Demas,” but does not give a first name or contact information or indicate if she made attempts to identify the doctor or medications since the court’s May 2022 order.

Parker states she produced writings responsive to the requests. There is no indication she amended responses with the information above. In response to both 6.4 and 6.5, Parker failed to provide basic information she should be able to access.

Parker’s response to form interrogatory 15.1 consisted of a detailed narrative regarding plaintiff Hanks’ alleged misconduct. Separate Statement at pgs. 6-7. It did not specify how each alleged fact in the narrative supports the affirmative defenses set forth in her answer. It is therefore nonresponsive.

Requests for Production of Documents

Each request sought communications in Parker’s control related to a variety of subjects, including trips Parker allegedly made, Hanks’ alleged misconduct, medical treatment Parker received and documents related to special interrogatory responses.

Most of Parker’s responses state Parker performed a diligent search which led her to conclude she did not possess the requested documents. E.g. separate statement pgs. 11-20. These responses are insufficient. Under Cal. Code of Civ. Proc. 2031.010, a response stating inability to comply with a discovery request must state the reason the responding party is unable to comply. Parker’s responses do not fulfil this requirement. She does not specify whether the documents existed but were destroyed, are in the possession of a third party or whether they never existed. Additionally, the documents are not sorted or labelled, making it unclear which records respond to a given request.

In response to requests nos. 1-5, Parker states she once had access to responsive text messages between herself and Hanks, but can no longer access them because her phone was damaged. Hanks argues this is unlikely, as text messages can be recovered from the phone’s SIM card. Hanks cites the declaration of Jeffrey Pinson, who claims he has “over 20 years’ experience with cell phones and the innerworkings of cell phone.” Pinson at 2. This is too vague for the court to treat Mr. Pinson as an expert witness.

Hanks requests judicial notice of various tabloid articles which reference text messages between Hanks and Parker and argues these prove Parker has access to the communications. See Separate Statement pgs. 12, 15, 17, request for judicial notice 3, 4. While the existence and content of the articles is subject to judicial notice under Evid. Code 452(h), the truth of the matters stated therein is not subject to judicial notice.

In opposition, Parker does not address the above points and does not refute the conclusion that her document production was insufficient. Sanctions are appropriate.

Hanks has not proven that Parker is hiding documents in her possession. Nonetheless, his suggestion that Parker be required to turn over her phone is well-taken. Parker claimed relevant messages are unrecoverable due to her phone’s physical damage; Hanks has the right to test that claim. The parties will meet and confer to designate a third-party expert who will take custody of the phone and attempt to recover relevant messages.

Monetary Sanctions

Parker’s responses to RFPS and interrogatories were insufficient, despite several prior orders. Monetary sanctions are appropriate. Hanks’ request for $11,760 is excessive. Counsel spent 15 hours on the joint status report, addressing defendants’ discovery and preparing the memorandum of points and authorities in this motion, with all work billed at $450/hr. Time spent on the status report is not attributable to Parker’s failure to comply. Hanks is awarded eight hours for the motion, at $450/hr., totaling $3,600, plus five hours for the reply, totaling $2,250. The requested three hours for time at the hearing will be reduced to two hours, totaling $900. The $60 in requested filing costs is reasonable.

Evidentiary sanctions are appropriate regarding the “spiritual healer” who allegedly treated Parker. Parker repeatedly failed to produce identifying info; she will be barred from introducing any evidence related to this treatment at trial.

Parker to pay $6,810 in monetary sanctions within 30 days, and to supplement discovery responses to correct the deficiencies identified above.

Case Number: *******8617 Hearing Date: April 19, 2023 Dept: P

Tentative Ruling

Hanks v. Parker, Case No. *******8617

Hearing Date April 19, 2023

Plaintiff Hanks’ Motion for Terminating Sanctions

On May 4, 2022 the court granted plaintiff Hanks’ motions to compel, requiring defendant Parker to provide further responses to discovery requests and appear for her deposition. On October 6, 2022 Hanks moved for terminating sanctions, as Parker failed to comply with the May 4, 2022 order. The court denied terminating sanctions but ordered Parker to supplement responses and appear for deposition within 30 days.

Hanks again moves for terminating sanctions, arguing Parker has not complied with either prior order. Hanks argues Parker failed to appear for deposition and provided deficient responses to form interrogatories Nos. 2.3, 6.4, 6.5 and 15.1 and requests for production of documents Nos. 1-25.

Terminating sanctions are justified where there is a willful discovery order violation, a history of abuse or evidence that less severe sanctions would not produce compliance with discovery rules. Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516. The purpose of terminating sanctions is not to punish but to secure compliance with the court’s orders and the party’s discovery obligations. Elec. Funds Sols., LLC v. Murphy (2005) 134 Cal. App. 4th 1161, 1183.

Deposition

On October 6, 2022 the court ordered Parker to “make herself available for deposition within thirty days.” The court noted that “[i]f defendant fails to appear, plaintiff may renew this motion.” 10/6/22 minute order, pg. 3.

Hanks’ counsel chose not to schedule Parker’s deposition until he determines that defendant adequately responded to outstanding discovery. Kernan decl. at 32-33. Parker has not failed to appear; Kernan made a tactical choice not to notice the deposition. This cannot be held against Parker.

Form Interrogatories/Request for Production

On October 6, 2022 the court ordered Parker to provide supplemental discovery responses on or before November 7, 2022. In response to the court’s order, Parker supplemented her production on November 8, 2022. Separate statement pgs. 5-11. Hanks argues the supplemental responses are deficient.

Since Parker complied with the order to supplement, the court will not impose the terminating, issue or monetary sanctions Hanks requests. Hanks, however, raises valid concerns about the responses, arguing they are deficient in several ways, including failing to attempt to procure information that should be accessible to Parker, being evasive and insufficient. While these concerns may be well-taken, this is not a motion to compel further discovery responses. Hanks is entitled to file such a motion, giving Parker the opportunity to supplement responses and/or oppose the motion. As this is a motion for terminating and/or issue sanctions, the court cannot order supplemental responses via this motion. DENIED.

Case Number: *******8617 Hearing Date: December 8, 2022 Dept: P

Tentative RulingHanks v. Parker, Case No. *******8617Hearing Date December 8, 2022Plaintiff’s Motion for Order Consolidating Discovery Issues and Appointing Discovery Referee

Plaintiff Hanks served discovery on defendant Parker in September 2021. After Parker did not timely respond, the court granted Hanks’ motions to compel responses, compel Parker’s deposition and deem requests for admission granted. Defendant served supplemental responses on July 11, 2022 and November 8, 2022. Hanks argues these responses are also insufficient. Hanks argues, given the discovery disputes still outstanding, the discovery issues should be consolidated and a discovery referee appointed.

A court cannot appoint a referee unless a majority of the following factors are present: (1) there are multiple issues to be resolved; (2) there are multiple motions to be heard simultaneously; (3) the present motion is only one in a continuum; (4) the number of documents to be reviewed make the inquiry inordinately time-consuming. Taggares v. Superior Court (1998) 62 Cal.App.4th 94, 105.

Some of the Taggares factors are present. There are multiple discovery motions pending, and Hanks states an intention to file additional motions. Several discovery motions have already been heard, each time resulting in an order for Parker to comply.

Nonetheless, a discovery referee is not inappropriate at this time. None of the upcoming motions deals with complex issues, nor is there an indication the court would be required to review voluminous documents or decide multiple, complex issues. Appointment of a referee would not meaningfully expedite discovery. Hanks argues “there needs to be a referee that orders [Parker] to comply and sits down and explains to them item by item what they need to do.” Motion at pg. 6. This is not the proper role of a discovery referee. At this point, appointment of a referee is not warranted. DENIED.

Case Number: *******8617 Hearing Date: October 6, 2022 Dept: P

Tentative RulingHanks v. Parker et al., Case No. *******8617Hearing date October 6, 2022Plaintiff Hanks’ Motion for Terminating and Monetary Sanctions

Plaintiff sued defendant, his former romantic partner, for theft, conversion, assault and battery. On May 4, 2022, the Court granted plaintiff’s motions to compel defendant’s deposition; responses to Form Interrogatories, Special Interrogatories and Requests for Production of documents; and for an order deeming Requests for Admissions admitted.

Plaintiff now moves for terminating sanctions and requests sanctions of $4,560.

Plaintiff requests the Court take judicial notice of two online articles and the Case

Information Summary from the Court website. A court has discretion to take judicial notice of "facts and propositions that are not subject to dispute and capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy". Evidence Code 452(h) [emphasis added]. The request for judicial notice of the online articles is DENIED, as these are not sources of reasonably indisputable accuracy and are hearsay. The request for judicial notice of the court website information is GRANTED.

Objections to the declarations of Williams and Murray are OVERRULED.

Defendant argues terminating sanctions are extreme. Defendant provided discovery responses following the court’s order and attempted to schedule her deposition, as ordered. Plaintiff argues the discovery responses are insufficient, and it is defendant’s responsibility to schedule her deposition.

Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidentiary or monetary sanctions. Code Civ. Proc., 2023.010(g), 2030.290(c); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1995) 75 Cal.App.4th 486, 495. “[T]erminating sanctions are to be used sparingly because of the drastic effect of their application.” (Department of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 191. “[S]anctions are generally imposed in an incremental approach, with terminating sanctions being the last resort.” Id.

On May 4, 2022, the Court granted plaintiff’s motions to compel responses to Form Interrogatories, Special Interrogatories, and Requests for Production of Documents and ordered defendant to serve responses without objections within twenty days. Kernan Decl., 10-11, Ex. D. The Court also granted plaintiff’s motion to compel defendant’s deposition and ordered the deposition to occur within forty-five days. Ibid. The Court deferred the issue of sanctions.

Defendant responded to the discovery, without objections, on May 24, 2022. Kernan Decl., 13-16, Exs. F, G, H. As defendant timely complied with the court order, she did not willfully disobey the order regarding the written discovery. To the extent plaintiff argues the responses are insufficient, he may schedule an IDC or motions to compel further responses.

Plaintiff argues terminating sanctions are warranted because of defendant’s failure to appear for deposition within forty-five days. Emails indicate that on June 17, 2022, defendant’s counsel sent plaintiff’s counsel an email initiating deposition scheduling and indicating availability in early August. Murray Decl., Exhibit B. At the July 11, 2022, case management conference, the parties were instructed to meet and confer to set deposition dates for both plaintiff and defendant. 7/11/22 Minute Order. Defendant’s deposition has not been conducted; defense counsel states: “[s]ince our July 11, 2022, CMC, we have not been contacted in any form or fashion by Plaintiff’s Counsel to provide deposition dates.” Murray Decl. 12.

Defense counsel initiated deposition scheduling talks in June, but apparently there have been no further discussions. Defendant was ordered to appear for deposition within 45 days of May 4, 2022; this has not occurred. There is no basis for the court to conclude this was willful, as defense counsel attempted to schedule the deposition. Plaintiff could have unilaterally noticed a deposition. It does not appear this occurred. Such is not the basis for terminating sanctions.

Defendant is to make herself available for deposition within thirty days. If defendant fails to appear, plaintiff may renew this motion. The parties are to meet and confer in advance of the hearing on this motion to select deposition dates for both plaintiff and defendant.

Plaintiff moves for monetary sanctions. Defendant does not address the sanctions request. Sanctions are not appropriate, as defendant timely provided discovery responses, without objection. Defense counsel also engaged in a discussion (though ultimately unfruitful) to schedule defendant’s deposition. This is not the willful failure to obey a court order that justifies the granting of either terminating or monetary sanctions.

In the future, if the parties have similar issues with failure to comply with court orders or other discovery issues, they are invited to contact the court to schedule an informal conference or schedule a case management conference. DENIED.

Case Number: *******8617 Hearing Date: May 4, 2022 Dept: P

Tentative Ruling

Hanks v. Parker, Case No. *******8617

Hearing Date May 4, 2022

Plaintiff’s Motions to Compel Discovery/Deem RFAs Admitted (UNOPPOSED)

Defendant failed to respond to requests for admission, requests for production of documents, form interrogatories, special interrogatories and a request for deposition, all served September 22, 2021. Plaintiff moves to compel production and deem the requests admitted, as well as monetary sanctions.

Responses to written discovery are due 30 days after service; service by mail extends the response deadline by five calendar days. Cal. Code of Civ. Proc. 2030.260, 2033.250, 2031.260, 1013. If a party fails to timely respond, propounding party may move to compel responses. Id. 2031.300, 2030.260. If a party in receipt of requests for admission fails to timely respond, propounding party can move for an order deeming the matters admitted. Id. 2033.280.

Plaintiff served defendant with discovery requests approximately six months ago and sent defense counsel multiple follow-up emails; defendant has not responded. Kernan decl. 2-8. Defendant provides no opposition. The motions are proper.

Monetary sanctions are justified since defendant has not explained the failure to comply or otherwise responded. The court will not impose separate sanctions for each motion, since they are essentially identical and plaintiffs was not required to prepare a reply. Kernan decl. 9. The requested three hours to attend the hearing is excessive. The court will award sanctions of 6 hours of attorney time at $450/hour, totaling $2,700, payable within 30 days. GRANTED.

Case Number: *******8617 Hearing Date: February 8, 2022 Dept: 30

CHESTER M. HANKS vs KIANA PARKERCourt Order Re: Transfer and Reassignment Of Complicated Personal Injury (“PI”) Case To An Independent Calendar ("IC") Courtroom From Department 30, A PI Hub Court; AFTER REVIEW OF THE FILE, THE COURT MAKES THE FOLLOWING ORDER: Department 30 of the Personal Injury Court has determined that the above-entitled action is complicated based upon the number of pretrial hearings and/or the complexity of the issues presented. At the direction of Department 1, this case is reassigned and transferred to the WEST District, the Honorable ELAINE W. MANDEL, Judge presiding in Department WEP of the SANTA MONICA Superior Court, for all purposes except trial. Department 1 hereby delegates to the Independent Calendar Court the authority to assign the cause for trial to that Independent Calendar Court. Hearing on Motions to Compel set for this date, 02/08/2022, and any pending motions or hearings, including trial or status conferences, will be reset, continued or vacated at the direction of the newly assigned Independent Calendar Court. (NOTE: Counsel are to note that ALL HEARINGS currently scheduled in Department 30 of the Spring Street Courthouse are to be considered off calendar, subject to being reset and notified by the receiving court. Counsel are to wait for notice from the receiving department Re: new hearing dates).Judicial Assistant is directed to give notice to Plaintiff, who upon receipt of this notice, is ordered to give notice to all Parties of record.