LEV SMORODINSKY VS LIEBERMAN SOFTWARE CORPORATION

Tentative Rulings

Case Number: SC127232    Hearing Date: January 31, 2020    Dept: P

Tentative Ruling

Lev Smorodinsky v. Lieberman Software Corporation, Case No. SC127232

Hearing Date: January 31, 2020

Plaintiff’s Brief Re Remaining Case Matters and Motion for Sanctions

On November 19, 2019, the court ruled on plaintiff’s motion for terminating sanctions. The court declined to issue terminating sanctions but ordered parties to meet and confer regarding outstanding discovery issues and ordered defendant to pay $17,000.00 in sanctions, due December 31, 2019. Plaintiff seeks terminating sanctions for defendant’s alleged failure to comply with the November 19 court order.

A court may impose sanctions for “misuse of the discovery process” including, but not limited to failing to respond or submit to an authorized method of discovery, making an evasive response to discovery and disobeying a court order to provide discovery. Cal. Code Civ. Proc. §2023.010(c). When a discovery violation is willful and preceded by a history of abuse, and the evidence shows that a less severe sanction wouldn’t produce compliance with discovery rules, a court is justified in imposing terminating sanctions. Deyo v. Kilbourne (1978) 84 CA3d 771, 796.

Plaintiff’s arguments regarding defendant’s failure to produce adequate supplemental discovery were considered in the court’s November 19, 2019; the court declines to reconsider them as a basis for terminating sanctions. As the order did not require an oral meet and confer, failure to do so did not violate a court order. Defendant did fail to pay the sanctions by the due date and has repeatedly failed to timely pay ordered sanctions.

The court will set an Order to Show Cause hearing re: terminating sanctions for February 25, 2020 at 8:30 am. If the full amount due in sanctions are not paid by that date, the court is inclined to order terminating sanctions. Additionally, the court will enter the order suggested in plaintiff’s reply and conceded to in defendant’s opposition.

Plaintiff may file an amended complaint including Beyond Trust, Inc. as a defendant, without objection. This is to be filed within _____ days.

Defendant will not object to the depositions of Jack Jaffe or Corrine Monge. These depositions will go forward within 45 days, at a mutually agreeable time and place. Defendant will provide further amended responses to written discovery as requested in plaintiff’s separate statement, within 30 days, without objection.

Defendant’s Motion to Compel/Reopen Discovery and for Monetary Sanctions

Defendant seeks leave to take plaintiff’s deposition and compel production of relevant files from his two computers. Defendant was unable to depose plaintiff due to plaintiff’s counsel’s three-week unavailability near discovery cutoff date. Defendant alleges plaintiff’s counsel promised to produce files from his laptop computer, but never did so. Additionally, defendant alleges plaintiff’s desktop computer contains files and documents relevant to plaintiff’s employment, which were not identified in discovery responses. The discovery cutoff date was June 17, 2019, based on a prior trial date.

On a motion of any party, a court may grant leave to reopen discovery. The court must consider “any matter relevant to the leave requested,” including but not limited to the reasons for the discovery, the diligence of the party seeking the discovery, any likelihood that reopening discovery will result in prejudice, and the length of time that has elapsed between any date previously set and the date presently set for the trial of the action. Cal. Code Civ. Proc. §2024.050.

The discovery cutoff date was six months ago. However, the discovery sought is highly relevant. As plaintiff’s counsel was unavailable for his client’s deposition prior to the discovery cut-off, it is not unreasonable to order plaintiff to sit for deposition now. As no trial date is currently scheduled, and allowable discovery is limited in scope, prejudice to plaintiff is minimal. The balance of factors weighs in favor of reopening discovery. No sanctions will be granted, as defendant’s failure to obtain the requested discovery is at least partially attributable to defendant’s lack of diligence.

GRANTED as stated. The requested discovery is to be produced, without objection, within 30 days. Plaintiff is to be deposed at a mutually agreeable time and place within 30 days. DENIED as to sanctions.

Case Number: SC127232    Hearing Date: November 19, 2019    Dept: P

TENTATIVE RULING

Lev Smorodinsky v. Lieberman Software Corp., Case No. SC127232

Motion for Terminating Sanctions

Hearing Date November 19, 2019

On August 26, 2019, the court ordered defendant to pay $16,411.25 in sanctions for disobedience of prior discovery orders and to immediately respond to supplemental interrogatories, requests for production and requests for admission without objection by September 25, 2019. Plaintiff argues defendant failed to comply by failing to pay sanctions, produce Jack Jaffe for deposition and producing supplemental responses identical to the initial responses (which included objections), despite the court’s order.

There is nothing per se improper about serving supplemental responses essentially identical to defendant’s initial responses, if there is no new information, as defendant states. Plaintiff does not meaningfully refute this.

Plaintiff also argues Phil Lieberman’s verification of the supplemental responses was false, because at Lieberman’s September 18, 2019 deposition, he stated he has not had access to the requested documents since January 31, 2018. Plaintiff states that since defendant’s merger in May 1, 2018, he has not been able to obtain the documents necessary to prepare for trial. The verification does not constitute a discovery violation, since it states Lieberman produced all documents within his possession, not all documents existing anywhere.

The failure to produce Jack Jaffe for deposition does not provide a basis for terminating sanctions. Defendant states – and plaintiff does not deny – that Jaffe no longer works for defendant. Defendant has no ability to produce Jaffe. Plaintiff may subpoena him.

Additionally, plaintiff argues defendant cancelled a scheduled mediation at the last minute, and failed to provide a “counter offer” to plaintiff’s proposed rescheduled date. This dispute does not constitute a discovery violation and is not a basis for awarding terminating sanctions.

Plaintiff states defendant failed to produce an employee handbook responsive to plaintiff’s deposition notice until after the deposition. Plaintiff does not dispute that the handbook was actually produced and provides no evidence that the handbook ultimately produced was incomplete or not fully responsive to the request for production.

Defendant does not dispute that it failed to pay the monetary sanctions previously awarded, but states it is in the process of meeting and conferring with plaintiff’s counsel to arrange for a payment schedule. Further sanctions are therefore not warranted.

Defendant is attempting to comply with the August 26, 2019 order to fulfill its discovery obligations. Terminating sanctions are not to be imposed lightly and are clearly not warranted here. Motion DENIED.