Motion for Sanctions- California

February 5, 2023

Keith Siddel, (SBN: 283585)

Attorney for PLAINTIFF

Siddel Law

1968 S Coast Hwy, Suite 1900

Laguna Beach, CA 92651

Tel: (949-610-1001)

Email: Ksiddel@siddellaw.com

 

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN DIEGO

BRANDON HARBERSON, an individual,

                        PLAINTIFF,

vs.

DAVID MORERO d/b/a The Mustang Auto & Classic Cars, a sole proprietorship

DOES 1-5

                    DEFENDANTS.

DAVID MORERO, an individual

                     CROSS-COMPLAINANT,

vs.

BRANDON HARBERSON, an individual,

                    CROSS-DEFENDANT.

Case No.: 37-2020-00028973-CU-BT-CTL

NOTICE OF MOTION AND MOTION

MEMORANDUM OF POINTS AND

AUTHORITIES REGARDING

PLAINTIFF’S/CROSS-DEFENDANT’S

MOTION FOR SANCTIONS

Date: 

Time: 

Dept.: C-73

Judge Wohlfeil

 

NOTICE TO DAVID MORERO AND TO HIS ATTORNEY OF RECORD AND SPECIAL NOTICE TO THIS HONORABLE COURT:

NOTICE IS HEREBY GIVEN that on [ENTER DATE] or as soon thereafter as the matter may be heard, in Department 73 this court, located at 330 W Broadway San Diego Ca 92101, Plaintiff/Cross-Defendant, Brandon Harberson (hereinafter “Plaintiff”) will, and hereby does, move for an Order providing escalating sanctions against the Defendant/Cross Complainant, David Morero (hereinafter “Defendant”), for Defendant’s willful violations of this court’s discovery order.

This Motion is made pursuant to Cal. Civ. Proc. Code § 2023.030 and § 2023.040 on the grounds that Defendant has refused to respond to this Honorable Court’s Order, compelling him to respond to Plaintiff’s discovery requests. 

Accordingly, Defendant has demonstrated a persistent and willful noncompliance in Plaintiff’s discovery efforts, engaging in egregious violations of the discovery laws thus impairing Plaintiff’s rights and threatens the integrity of the judicial process. 

This Motion is based on this Notice, the attached Memorandum of Points and Authorities, the pleadings herein, and on such further oral and/or documentary evidence as may be presented or judicially noticed at the hearing of this Motion.

 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

I

STATEMENT OF FACTS

Plaintiff’s Special Interrogatories, Set No. 1; Form Interrogatories – General, Set No. 1;

Requests for Admission, Set No. 1; and Requests for Production of Documents, Set No. 1 were served on Defendant/ Cross Complainant, David Morero (hereinafter “Defendant”) on November 11, 2020. Upon failing to receive a timely response to such requests, receiving no response to Plaintiff’s December 15, 2020 meet and confer letter, Plaintiff filed his Motion to Compel Responses to the above discovery requests on January 5, 2021 with this Court.

On or about January 22, 2021, Plaintiff received the following responses from Defendant:

Special Interrogatories, Set No. 1; Requests for Admission, Set No. 1; and Requests for Production of Documents, Set No. 1; which included Defendant’s Declaration (also filed with this Court, in lieu of an Opposition to Plaintiff’s Motion) stating that he “turned in all of the discovery.” (See, Defendant’s Declaration ¶ 1).

On February 2, 2021 the court issued a tentative ruling and all parties appeared before Judge Wohlfeil on February 3, 2021. The Defendant argued that due to COVID, business complications and attorney issues he had been late in responding to discovery. The court ordered in part:

Defendant is directed to serve verified responses to Plaintiff’s Special Interrogatories, Set No. 1, Form Interrogatories – General, Set No. 1, Requests for Admission, Set No. 1, and Requests for Production of Documents, Set No. 1, within twenty (20) days of the hearing of this Motion, and produce the documents within twenty-five (25) days of the hearing of this Motion.

 

On February 8, 2021 the Defendant emailed a few additional discovery responses but they were not verified as ordered by this court. In response to most of Plaintiffs’ requests, Defendant (a) lodged improper and dilatory objections, and (b) produced non-responses that clearly indicate that the Defendant made no effort to make reasonable inquiry into providing responsive information within the time produced for by the Rules of Civil Procedure (c) claimed that documents don’t exist when common sense and evidence clearly indicate they do exist and are available to the Defendant.

Efforts to resolve these matters without court intervention were attempted. On April 8,

2021 (148 days from the original request) when no additional information had been provided the

Plaintiff’s counsel attempted to contact the Defendant’s counsel to confer regarding the lack of compliance with Courts order. The attempted contact included a Telephone call, two emails sent and a letter sent USPS. There was no response to communication. On April 29, 2021, Plaintiff’s counsel again tried to contact Defendant’s counsel regarding the lack of response and to notify him that a motion to compel would be filed with this court. On April 30, 2021, Defendant’s counsel emailed acknowledging that the discovery sent on February 8, 2021 was unverified. Furthermore, he acknowledged additional information would not be forthcoming. (See, Supplemental Declaration of Keith Siddel “Siddel Supp. Decl. ¶ 4).

On June 30, 2021, Plaintiff again filed a Motion to Compel Defendant to comply with Plaintiff’s discovery requests. The Hon. Judge told Plaintiff to file the instant Motion for Sanctions. (A copy of the Motion Regarding Plaintiff’s/Cross-Defendant’s Motion to Compel Responses to Discovery is attached herein). 

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II

LEGAL ARGUMENT

SANCTIONS ARE AVAILABLE AND PROPER FOR FAILURE TO OBEY COURT ORDERS COMPELLING RESPONSE TO DISCOVERY REQUESTS

The purpose of discovery sanctions is not to provide a weapon for punishment, forfeiture, and the avoidance of the trial on the merits, but to prevent abuse of the discovery process and correct the problem presented.  California Discovery Citations (TRG 2019) ¶1:6 citing Parker v. Wolters Kluwer U.S., Inc. (2007) 149 CA4th 285 (pdf) at 301.

Discovery sanctions are to compensate for costs and fees incurred by the party in enforcing discovery or defending a meritless motion.  See Weil and Brown, California Practice Guide: Civil Procedure Before Trial (TRG 2019) ¶8:1213 citing Deyo v. Kilbourne (1978) 84 CA3d 1403, 1427-1428.

“The party to whom interrogatories have been propounded shall respond in writing under oath separately to each interrogatory.” C.C.P. §2030.210 (a).  Besides,  according to C.C.P. §§ 2023.010(d), (g), and (i), “failing to respond or to submit to authorized methods of discovery”, “disobeying a court order to provide discovery”, and “failing to confer” are all misuses of the discovery process. 

Defendant has failed to sufficiently respond to Plaintiff’s properly served discovery requests and has also disobeyed this Court’s Order that he does so, and fails to make any attempt(s) seeking to resolve this issue.

Despite Defendant’s declaration that he’s “turned in all of the discovery,” Defendant has not provided responses to Plaintiff’s Request for Production of Documents –Set No. 1, as served with all other discover requests. (See attached Motion Regarding Plaintiff’s/Cross-Defendant’s Motion to Compel Responses to Discovery).

It is worth noting that Defendant’s pattern of abuse of the discovery process is also evident when Defendant initially responded with 0 documents to Plaintiff’s 39 Requests for Production. Subsequently in February 2021, he responded to three of the requests with six documents. The vast majority of the requests for production have been ignored.

Also, Defendant has pled ignorance to information that can be obtained from sources under his control. See Deyo v. Kilbourne (1978) 84 CA 3d 771(pdf). However, for discovery purposes, it has been held that an individual has control over family members; agents or employees, officers, shareholders or managers; and tax records. See Jones v. Superior Court, (1981) 119 CA 3d 534, 552; Gordon v. Superior Court, (1984) 161 CA 3d 151; General Environmental Science Corp v. Horsfall (1991, ND Ohio) 136 FRD 130, 133-134; and Reeves v. Pennsylvania Railroad Co. (1948, D Del) 80 F Supp 107, 109.

Defendant also failed to make a “diligent search and reasonable inquiry” for items Defendant claims no longer exist or are no longer in Defendant’s possession. Additionally, Defendant committed further violations of discovery laws by failing to describe the items that Defendant claims are no longer in his possession, and what happened to them; failing to provide information of any person who is in possession of the requested items; and failing to list what items he will not provide and reasons thereof. 

Finally, Defendant disobeyed this Honorable Court’s February 2021 Order compelling Defendant to serve verified responses to Plaintiff’s Special Interrogatories within twenty (20) days of the hearing of the Motion, and produce the documents within twenty-five (25) days of the hearing of this Motion. It is worth noting that the complete range of sanctions may be imposed if a party refuses to obey a court order with respect to discovery. See Frates v. Treder, 249 Cal. App. 2d 199, 206, 57 Cal. Rptr. 383, 387 (1967).

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III

CONCLUSION

For the foregoing reasons, Plaintiff respectfully requests that this Court enter an Order of escalating sanctions against Defendant that:

  1. Defendant pays [ENTER AMOUNT] as Plaintiff’s litigation expenses in connection with this instant Memorandum and the Motion for Contempt filed on or about June 30, 2021.
  2. Defendant pays [ENTER AMOUNT] for violation of this Court’s Order dated February 2, 2021, which amounts to contempt of court. 
  3. Defendant responds to and/or provides the requested information and/or documents strictly within [ENTER NUMBER OF DAYS], failure to which the Court shall enter an order rendering a judgment by default against Defendant. 

 

Plaintiff also prays for such other and further relief that this court deems just and proper.

 

DATED: 

Respectfully submitted,

 

                                                                                                

              

 

SUPPLEMENTAL DECLARATION OF KEITH SIDDEL

I, KEITH SIDDEL, declare:

  1. I am an attorney licensed to practice law in the State of California and am counsel of record for the Plaintiff in the above-entitled action. I have personal knowledge of the facts contained within this Declaration, and if called as a witness, I could and would competently testify thereto.
  2. On or about January 22, 2021, I received Defendant, David Morero’s Responses to Plaintiff’s Special Interrogatories, Set No. 1; Requests for Admission, Set No. 1; and Requests for Production of Documents, Set No. 1.
  3. Included with Defendant’s responses, and filed with this Court, was his Declaration describing his difficulty in responding to Plaintiff’s discovery requests and provides that he “turned in all the discovery.”
  4. Of Plaintiff’s 39 Requests for Production, Defendant provided 0 documents in response, forcing Plaintiff to seek relief from this Court to compel further responses. On February 8, 2021 the Defendant emailed a few additional discovery responses but they were not verified as ordered by this court.
  5. The subsequent unverified discovery provided after the in February 2021 he responded to three of the requests with six documents.
  6. On April 8, 2021 I attempted to contact the Defendant’s counsel to confer regarding the lack of compliance with Courts order. The attempted contact included a Telephone call, two emails sent and a letter sent USPS. I received no response to communication.
  7. On April 29, 2021 I tried to contact Defendant’s counsel via telephone and email regarding the lack of response and to notify him that a motion to compel would be filed with this court.
  8. On April 30, 2021 I received a emailed from Defendant’s counsel acknowledging that the discovery sent on February 8, 2021 was unverified. Furthermore, he acknowledged additional information would not be forthcoming.
  9. On June 30, 2021, Plaintiff again filed a Motion to Compel Defendant to comply with Plaintiff’s discovery requests. The Hon. Judge told Plaintiff to file the instant Motion for Sanctions.
  10. Plaintiff has and will incur the sum of [ENTER AMOUNT] in connection with this Memorandum, in addition to the fees/expenses declared in Plaintiff’s Motion to Compel Responses.

 

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

 

Dated: 

 

CERTIFICATE OF SERVICE

 

I hereby certify that on [ENTER DATE], a copy of the foregoing Motion has been sent to the Defendant in the following address:

 

David A. Pomeranz, J.D, M.A., Esq.

The Law Offices of David A. Pomeranz

270 East Douglas Avenue

El Cajon, CA 92020-4514

(619) 741-3775 tel

(619) 761-5900 fax

    

   

 

Attorney for PLAINTIFF

Siddel Law

1968 S Coast Hwy, Suite 1900

Laguna Beach, CA 92651

Tel: (949-610-1001)

Email: Ksiddel@siddellaw.com

 

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN DIEGO

BRANDON HARBERSON, an individual,

                        PLAINTIFF,

vs.

DAVID MORERO d/b/a The Mustang Auto & Classic Cars, a sole proprietorship

DOES 1-5

                    DEFENDANTS.

DAVID MORERO, an individual

                     CROSS-COMPLAINANT,

vs.

BRANDON HARBERSON, an individual,

                    CROSS-DEFENDANT.

Case No.: 37-2020-00028973-CU-BT-CTL

PROPOSED ORDER RE: PLAINTIFF’S REQUEST FOR AN ORDER OF ESCALATING SANCTIONS

Date: 

Time: 

Dept.: C-73

Judge Wohlfeil

 

The motion of Plaintiff, BRANDON HARBERSON (“the Plaintiff”), for an order providing escalating sanctions against the Defendant/Cross Complainant, David Morero (hereinafter “Defendant”), for Defendant’s violation of a lawful court order done without good cause or substantial justification having come on regularly for hearing before the undersigned on [ENTER DATE], upon notice duly and regularly given, counsel for both parties appearing, and oral and documentary evidence having been received and the matter having been submitted, and good cause appearing therefore,

The Court hereby finds that the order providing escalating sanctions against the Defendant is justified by the following conduct or circumstance showing that Defendant violated a lawful court order without good cause or substantial justification in that Defendant failed to serve verified responses to Plaintiff’s Special Interrogatories within twenty (20) days of the hearing of the Motion on February 3, 2021, and produce the documents within twenty-five (25) days of the said date.

It is hereby ordered that:

  1. Defendant pays [ENTER AMOUNT] as Plaintiff’s litigation expenses in connection with this Plaintiff’s Memorandum in support of Plaintiff’s Motion for Sanctions and the Motion for Contempt filed on or about June 30, 2021. Defendant shall pay this amount to this Court within seven (7) days from the date of this order.
  2. Defendant pays [ENTER AMOUNT] for violation of this Court’s Order dated February 2, 2021, which conduct amounts to contempt of court. Defendant shall pay this amount to this Court within seven (7) days from the date of this order.
  3. Defendant responds to and/or provides the requested information and/or documents strictly within [ENTER NUMBER OF DAYS], failure to which the Court shall enter an order rendering a judgment by default against Defendant. 

 

It is so ordered. 

 

Date:


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