Andrew Muray et al vs Karen Lantz et al [and Related Cross-Complaint]

Case Number

24CV03000

Case Type

Hearing Date / Time

Wed, 03/12/2025 - 10:00

Nature of Proceedings

Motion for Evidentiary and/or Issue Sanctions and to Pay Monetary Sanctions for Failure to Comply with Court Orders

Tentative Ruling

Brant K. Berglund, Lacy L. Taylor for Plaintiffs Andrew Muray and Kerri Marshall.

James Devine, Kenneth Coronel for Defendants Karen Lantz and Andrew Farkas.

Acknowledgements

The Court acknowledges and appreciates the professional work done by counsel in the case. The case has been contentious; acrimonious at times. The Court apologizes for clerical and grammatical errors in this ruling; also, for the length of ruling; the Court has not been able to work on this matter on consecutive days so summarizing proves very helpful in saving time.

Issue

Motion for Evidentiary and/or Issue Sanctions and to Pay Monetary Sanctions for Failure to Comply with Court Orders.  

RULING

For the reasons set out below:

1. Defendants’ request for Judicial Notice is granted.

2. Defendants’ motion and the relief requested is denied.

3. The Trial date of 7/30/25 and the MSC date of 7/11/25 and the final CMC date of 5/14/25 are all confirmed.

Background

Case filed 5/2024; summarized: Richard Wideman represented Plaintiffs; action commenced on May 29, 2024, by the filing of the complaint by Plaintiffs for injunction and damages for forcible entry and trespass, self-help, and quiet title based on adverse possession. As alleged in the complaint: Plaintiffs are the owners of real property known as 922 Roble Lane in Santa Barbara. Defendants are the owners of real property known as 916 Roble Lane in Santa Barbara, adjacent to Plaintiffs’ property. On May 20, 2024, while Plaintiffs were away from their property, Defendants used bulldozers and other heavy construction equipment to remove a portion of Plaintiffs’ property, claiming that that portion of Plaintiffs’ property trespassed on Defendants’ property. Defendants removed a portion of the balcony, fencing, and foundation footings that had been present for approximately 40 years. Sometime between 1979 and 1982, the prior owners of Plaintiffs’ property had made permitted additions to the property including the potions removed by Defendants. Defendants plan to construct improvements on the property including the area formerly occupied by the portions of Plaintiffs’ property that was removed by Defendants. On 6/7/24, Plaintiffs were granted a temporary restraining order prohibiting Defendants from entering onto or constructing any improvements on property that Plaintiffs claim was formerly occupied by 922 Roble Lane prior to Defendants’ removal of the wall, portions of the balcony, and footings.

On 7/10/24 a Preliminary Injunction issued: “Defendants Karen Lantz and Andrew Farkas, as well as their agents, representatives, contractors, and employees, are preliminarily enjoined and restrained from entering onto or constructing any improvements on property that Plaintiffs claim was formerly occupied by 922 Roble Lane, Santa Barbara, prior to Defendants’ removal of certain improvements thereon, including a wall, portions of a balcony, and footings. This order shall not take effect until Plaintiffs file a written undertaking in the amount of $10,000.00 to indemnify Defendants for any damages Defendants may sustain if the Court finally determines that Plaintiffs are not entitled to the injunction. Plaintiffs shall file a written undertaking in the amount of $10,000.00 no later than July 12, 2024.”

The Answer was filed 8/28/25; a cross complaint was filed; James Devine for Defendants and Cross-complainants.

The Motion

Filed 12/18/24; set for 3/12/25; 18 pages; summarized: in general, it is based upon the allegation of Muray’s failure to comply with the Court’s order issued on October 30, 2024, compelling Muray to respond to discovery propounded upon him by Cross-Complainants and to pay monetary sanctions to Cross-Complainants; request (1) either (a) evidentiary sanctions or (b) issues sanctions against Muray and (2) monetary sanctions payable to Cross-Complainants in the amount of $4,435 and payable to the Court in the amount of $1,500; motion is made on the grounds that Muray failed to comply with the Court’s October 30, 2024, order in that Muray failed to provide supplemental discovery responses and failed to pay his monetary sanctions.

More specifically the contentions are:

On July 3, 2024, Cross-Complainants propounded written discovery on Muray consisting of form interrogatories, special interrogatories, requests for admission, and inspection demands.

On September 18, 2024, Cross-Complainants filed and served, four (4) motions to (a) compel Muray to respond to the form interrogatories, special interrogatories, requests for admissions, and requests for production of documents and (b) impose monetary sanctions against Muray. In addition to and to support the Motions to Compel, Cross-Complainants filed and served separate statements of the discovery and responses in dispute as to the form interrogatories, special interrogatories, requests for admissions, and requests for production of documents.

On October 30, 2024, the Court conducted a hearing on the Motions to Compel and granted each of the Motions to Compel. At the conclusion of the October 30, 2024, hearing, the Court sent an email to counsel for the parties, including counsel for Plaintiffs Richard I. Wideman, to which the Court’s final order on the Motions to Compel was attached. The Order required Muray to provide amended and supplemental discovery responses by November 13, 2024, and pay monetary sanctions by December 13, 2024.

As of November 13, 2024, Muray had not served any supplemental discovery responses on Cross-Complainants’ counsel.

On November 18, 2024, Cross-Complainants’ counsel sent an email to Mr. Wideman attaching a copy of the Order and inquiring about the status of Muray’s supplemental responses to the discovery. Cross-Complainant’s counsel did not receive any response from Mr. Wideman to his November 18, 2024, email.

Cross-Complainants issued deposition notices to Plaintiffs such that their depositions were scheduled to be taken on December 16 and 18, 2024. Because Cross-Complainants did not receive proper discovery responses from Plaintiffs and have not produced any documentary evidence to support their claims, Cross-Complainants cannot proceed with Plaintiffs’ depositions. Due to Muray’s failure to comply with the Order and the lack of proper discovery responses and/or document production, Mr. Coronel sent a letter to Mr.

Wideman on December 11, 2024, reminding Mr. Wideman that Muray had not provided his discovery responses and documents as required by the Order and, as such, would be rescheduling Plaintiffs’ depositions accordingly.

As of the date of the motion, Cross-Complainants had not received any discovery responses from Muray or any sanctions payment.

Cross-Complainants’ requested sanctions are very extensive:

1. The Court orders that Plaintiffs from [be] precluded from presenting evidence that Plaintiffs continuously occupied the real property commonly known as 922 Roble Lane, Santa Barbara, California (“922 Roble”) in the five (5) years prior to May 29, 2024, or alternatively finds that Plaintiff have not continuously occupied 922 Roble during that period – based on Request for Admission No. 2.

2. The Court orders that Plaintiffs from [be] precluded from presenting evidence that any person other than Cross-Complainants has continuously occupied the real property commonly known as 916 Roble Lane, Santa Barbara, California (“916 Roble”) in the five (5) years prior to May 29, 2024, or alternatively finds that only Cross-Complainants have continuously occupied 916 Roble during that period – based on Request for Admission No. 6. 

3. The Court orders that Plaintiffs from [be] precluded from presenting evidence that any person has continuously claimed an ownership in 916 Roble since August 25, 2022, other than Cross-Complainants, or alternatively finds that only Cross-Complainants have continuously claimed an ownership in the property since that date – based on Request for Admission No. 7.

4. The Court orders that Plaintiffs from [be] precluded from presenting evidence that Plaintiffs made any improvements to any portion of 916 Roble they claim to have adversely possessed, or alternatively finds that Plaintiffs have not done so – based on Request for Admission No. 14.

5. The Court orders that Plaintiffs from [be] precluded from presenting evidence that the balcony constructed on 922 Roble was permitted to extend over 916 Roble, or alternatively finds that no permit was so issued – based on Request for Admission No. 26 and Form Interrogatory 17.1 related thereto.

6. The Court orders that Plaintiffs from [be] precluded from presenting evidence that Plaintiffs have suffered any emotional distress as a result of the activities alleged in the Complaint, or alternatively finds that Plaintiffs have not suffered any such damages – based on Form Interrogatory 6.3.

7. The Court orders that Plaintiffs from [be] precluded from presenting evidence that Plaintiffs have suffered any damages as a result of the activities alleged in the Complaint, or alternatively finds that Plaintiffs have not suffered any such damages – based on Form Interrogatory 9.1.

8. The Court orders that Plaintiffs from [be] precluded from presenting evidence that any person has continuously occupied 922 Roble during the five (5) years prior to May 29, 2024, or alternatively finds that no person has done so – based on Form Interrogatory 17.1 as it relates to Request for Admission No. 5.

9. The Court orders that Plaintiffs from [be] precluded from presenting evidence that Plaintiffs acquired an ownership interest in 916 Roble through adverse possession, or alternatively finds that Plaintiffs have not do so – based on Form Interrogatory 17.1 as it relates to Request for Admission No. 8.

10. The Court orders that Plaintiffs from [be] precluded from presenting evidence that Plaintiffs paid property taxes on any portion of 916 Roble that Plaintiffs claim to have acquired through adverse possession, or alternatively finds that Plaintiffs have not done so – based on Form Interrogatory 17.1 as it relates to Request for Admission No. 9.

11. The Court orders that Plaintiffs from [be] precluded from presenting evidence that Plaintiffs timely paid property taxes on any portion of 916 Roble that Plaintiffs claim to have acquired through adverse possession, or alternatively finds that Plaintiffs have not done so – based on Form Interrogatory 17.1 as it relates to Request for Admission No. 10.

12. The Court orders that Plaintiffs from [be] precluded from presenting evidence that some portion of 916 Roble that Plaintiffs claim to have acquired through adverse possession is “protected by a substantial enclosure” as those terms are used in Code of Civil Procedure § 325(a), or alternatively finds that there is no such portion – based on Form Interrogatory 17.1 as it relates to Request for Admission No. 13.

13. The Court orders that Plaintiffs from [be] precluded from presenting evidence that Cross-Complainants caused damage the “balcony” described in paragraph 6 of the Complaint, or alternatively finds that Cross-Complainants did not cause any such damage – based on Form Interrogatory 17.1 as it relates to Request for Admission No. 19.

14. The Court orders that Plaintiffs from [be] precluded from presenting evidence that the

“fencing” referenced in paragraph 6 of the Complaint was built anywhere other than entirely within the property boundaries of 916 Roble, or alternatively finds that the “fencing” was built entirely within the property boundaries of 916 Roble – based on Form Interrogatory 17.1 as it relates to Request for Admission No. 27.

15. The Court orders that Plaintiffs from [be] precluded from presenting evidence that the “fencing” referenced in paragraph 6 of the Complaint was physically attached to the wooden deck on the side of 922 Roble that faces to 916 Roble, or alternatively finds that the “fencing” was not physically attached to said deck – based on Form Interrogatory 17.1 as it relates to Request for Admission No. 31. 

16. The Court orders that Plaintiffs from [be] precluded from presenting evidence that Cross-Complainants required permission from Plaintiffs to remove the “fencing,” or alternatively finds that no such permission was required – based on Form interrogatory 17.1 as it relates to Request for Admission No. 32.

17. The Court orders that Plaintiffs from [be] precluded from presenting evidence that Muray does not operate his business known as Nanoport Technologies, LLC from 922 Roble with a business license from the City of Santa Barbara to do so, or alternatively finds that Muray operates such business without a business license – based on Form Interrogatory 17.1 at it relates to Request for Admission No. 33.

18. The Court orders that Plaintiffs from [be] precluded from presenting evidence that Muray does not have knowledge that Nanoport Technologies, LLC operates from 922 Roble without having a business license from the City of Santa Barbara to do so, or alternatively finds that that Muray knew of such operation without having a business license – based on Form Interrogatory 17.1 as it relates to Request for Admission No. 34.

19. The Court orders that Plaintiffs from [be] precluded from presenting evidence that at

sometime between 1979 and 1982, the owners of 922 Roble prior to Plaintiffs made certain permitted additions to said property including the portions thereof that Cross-Complainants claim were trespassing on 916 Roble and that were removed by Cross-Complainants in late May 2024, or alternatively finds that no such permitted additions were made – based on Special Interrogatory No. 7.

20. The Court orders that Plaintiffs from [be] precluded from presenting evidence that Plaintiffs suffered any damages for any trespass onto 922 Roble by Cross-Complainants, or alternatively finds that they suffered no such damages – based on Special Interrogatory Nos. 13, 14, 15, and 33, and Request for Production No. 5.

21. The Court orders that Plaintiffs from [be] precluded from presenting evidence that that Cross-Complainants intend to construct improvements on any portion of 916 Roble that Plaintiffs contend they have adversely possessed and are entitled to a permanent injunction preventing Cross-Complainants from constructing such improvements, or alternatively finds that Cross-Complainants have no such intention and Plaintiffs are not entitled to a permanent injunction – based on Special Interrogatory Nos. 19, 20, and 21, and Request for Production No. 7.

22. The Court orders that Plaintiffs from [be] precluded from presenting evidence that Plaintiffs have suffered consequential and incidental damages for the conduct of Cross-Complainants alleged in the Complaint, or alternatively finds that Plaintiffs have suffered any such consequential and/or incidental damages – based on Special Interrogatory Nos. 22, 23, 24, and 34.

23. The Court orders that Plaintiffs from [be] precluded from presenting evidence that Plaintiffs occupied 922 Roble in the five (5) years prior to May 29, 2024, or alternatively finds that Plaintiffs did not occupy 922 Roble in the five (5) years prior to May 29, 2024 – based on Special Interrogatory No. 25.

24. The Court orders that Plaintiffs from [be] precluded from presenting evidence that Plaintiffs acquired an ownership interest in any portion of 916 Roble, or alternatively finds that Plaintiffs have not acquired an ownership interest in 916 Roble – based on Special Interrogatory No. 29.

25. The Court finds that Plaintiffs have leased 922 Roble to a third party in the five (5) years prior to May 29, 2024 – based on Special Interrogatory No. 30 and Request for Production No. 41.

26. The Court orders that Plaintiffs from [be] precluded from presenting evidence that Cross-Complainants, unless enjoined and restrained from doing so, plan to construct improvements to 916 Roble on the area formerly occupied by those portions of 922 Roble that they removed, which portions are and have been adversely possessed by Plaintiffs and their predecessors and which, therefore, do not belong to Cross-Complainants, or finds that Cross-Complainants do not plan to construct any improvements on 916 Roble that were ever occupied by 916 Roble – based on Request for Production No. 6.

27. The Court orders that Plaintiffs from [be] precluded from presenting evidence consisting of correspondence between Plaintiffs and any person regarding Lantz – based on Request for Production No. 35.

28. The Court orders that Plaintiffs from [be] precluded from presenting evidence consisting of correspondence between Plaintiffs and any person regarding Farkas – based on Request for Production No. 36.

29. The Court orders that Plaintiffs from [be] precluded from presenting evidence consisting of correspondence between Plaintiffs and any person regarding Lantz’s construction activities at 916 Roble – based on Request for Production No. 40.

30. The Court orders that Plaintiffs from [be] precluded from presenting evidence consisting of correspondence between Plaintiffs and any person regarding Plaintiffs payment of property taxes to the County of Santa Barbara for any portion of 916 Roble – based on Request for Production No. 43.

Cross-Complainants requests that the Court impose monetary sanctions against Muray payable to Cross-Complainants in the amount of $4,435. In addition to the foregoing discovery sanctions, that the court may impose a sanction of $1,500 payable to the court for violation of an order “without good cause or substantial justification.”

Request for Judicial Notice

Filed 12/18/24; 76 pages; requests judicial notice of:

1. On May 29, 2024, Plaintiffs/Cross-Defendants filed their verified “Complaint for Injunction and Damages and Punitive Damages for Nonstatutory Forcible Entry and Trespass, Self-Help, Quiet Title Base on Adverse Possession;” Exhibit “E.” 

2. On June 7, 2024, the Court granted Plaintiffs’ application for a temporary restraining order precluding Cross-Complainants from constructing any improvements on their property that Plaintiffs claims was formerly occupied by them.

3. On July 10, 2024, the Court granted Plaintiffs’ application for a preliminary injunction

precluding Cross-Complainants from the same conduct.

4. On September 18, 2024, Cross-Complainants filed the following documents, Defendants/Cross-Complainants’ Separate Statement of Form Interrogatories and Responses in Dispute, Defendants/Cross-Complainants’ Separate Statement of Special Interrogatories and Responses in Dispute, Defendants/Cross-Complainants’ Separate Statement of Requests for Admissions and Responses in Dispute, and Defendants/Cross-Complainants’ Separate Statement of Requests for Production of Documents and Things and Responses in Dispute; Exhibits “F,” “G,” “H,” and “I,” respectively. 

Opposition

Filed 2/27/25; 27 pages; summarized: At all times, Plaintiffs acted in good faith and sought to comply with discovery obligations. However, due to Attorney Richard Wideman’s serious medical conditions, he was unable to effectively convey Plaintiffs’ discovery responses, respond to Defendants’ communications, or take the necessary steps to comply with the Court’s order in a timely manner. The failures at issue were not the fault of Plaintiffs but rather the result of severe disruption caused by their attorney’s health crisis. Sanctions against Plaintiffs under these circumstances would be unduly harsh and

inequitable. While Plaintiffs were aware that discovery was an ongoing process, they were not informed of the significance of specific deadlines or the urgency of their obligations. Plaintiffs remained ready to provide any information or documents as requested, believing, as Attorney Wideman repeatedly assured them, that he was handling all necessary filings and would obtain any needed extensions. As a result, Plaintiffs were unaware that deadlines were not being met and did not realize their compliance had not been properly facilitated.

Plaintiffs were not aware of the full scope and timing of their discovery obligations,

they timely paid the full amount of monetary sanctions ordered by the Court, with Muray

delivering a check on December 13, 2024, in the amount of $5,990. While Plaintiffs were led to believe that Attorney Wideman was managing the discovery process, in reality, he was incapacitated for months due to severe medical complications.

As detailed in Richard Wideman’s notice of unavailability (Exhibit B), his condition

deteriorated significantly, resulting in multiple hospitalizations, surgeries, and physical

incapacitation. The proof of service of this notice of unavailability was signed by Richard

Wideman’s son, Jonathan Wideman, presumably due to the incapacity of his father. The Plaintiffs were later informed that, at some point during this time, Attorney Wideman suffered a stroke, further impairing his ability to effectively manage their case.

Despite repeated inquiries from Plaintiffs, Attorney Wideman either failed to respond or

provided vague reassurances that he was handling the matter, when in fact he was unable to meet discovery deadlines, communicate with opposing counsel, or advise Plaintiffs of their obligations. 

After months of incomplete and misleading communication, Plaintiffs retained new counsel, Lacy Taylor and Brant Berglund of Thyne Taylor Fox Howard, who promptly worked to remedy the outstanding discovery issues. Plaintiffs have since fully complied with their discovery obligations. Details of Plaintiffs’ recent interactions with Attorney Wideman, including his lack of communication and assurances that he was handling the matter, are outlined in the Declaration of Andrew Muray, filed concurrently. Exhibit C. 

Plaintiffs have provided all supplemental discovery responses.

Trial is scheduled for July 30, 2025, and Defendants have ample time to review discovery and conduct any necessary follow-up. Given that Defendants now possess the discovery they sought, and that Plaintiffs acted promptly once they became aware of the issue, there is no prejudice to Defendants that would justify sanctions. Accordingly, the delays at issue were entirely beyond Plaintiffs’ control, and Defendants’ motion for sanctions should be denied.

Evidentiary and issue sanctions are severe penalties that should be imposed only in cases of willful disobedience or flagrant abuse of the discovery process. A trial court has broad discretion in imposing such sanctions, but two prerequisites generally must be met: (1) there must be a failure to comply with a court order, and (2) the failure must be willful (Biles v. Exxon Mobil Corp., 124 Cal. App. 4th 1315, 1316 (2004)). Even when non-monetary sanctions are warranted, they must be proportionate to the alleged misconduct and should not exceed what is necessary to protect the interests of the opposing party.

Plaintiffs request that the Court deny Defendants’ motion. 

Reply

Filed 3/5/25, 13 pages; summarized: Plaintiff’s Opposition is rife with misstatements of fact, misapplication of the law and false conclusions. Plaintiff plays fast and loose with the facts, making claims that are contradicted by the evidence, including his own evidence, and making claims that are completely unsupported by any evidence (e.g., that his counsel Richard I. Wideman had a stroke). Plaintiff also attempts to cloud the record and confuse Cross-Complainants and the Court by cleverly attempting to hide information, such as the dates on which certain events occurred (e.g., the date Muray was advised of the content of the October 30, 2024, order and by failing to support the Opposition with copies of the documents referred to in declarations (e.g., the emails discussed in the declarations). The Opposition is not advanced in good faith nor with substantial justification.

Notwithstanding the attempt to hide and confuse the underlying facts, Plaintiff’s evidence does establish that Muray was aware of the content of the Order no later than December 13, 2024, and despite this, he did not serve supplemental responses and produce documents until February 27, 2025. Muray was sending Wideman emails as early as November 11 regarding preparation of the supplemental responses in order to meet the November 13 deadline. 

Plaintiff’s evidence also undercuts his claim that Wideman was completely disabled after he fell and hurt his knee on November 3, 2024. Undoubtedly, Wideman was ill. But it does not appear that his illness prevented him from taking any actions to respond to the Order. The record establishes that after November 3, while Wideman claims he was completely unable to work, he was exchanging emails with Plaintiffs, preparing bills, and he even made a court appearance in another case. Plaintiff does not provide evidence that Wideman does not have an associate, paralegal or assistant who could have assisted him respond to the Order. His son, Jonathan Wideman, a licensed California attorney who shares his father’s business address, did assist him with the case, albeit briefly. 

Plaintiff also ignores controlling law. Specifically, cases which hold that a showing of willful

disobedience of a Court order is not required to support a request for the imposition of issue and evidence sanctions. They also ignore the cases that hold that parties are bound by the acts of their attorneys and are deemed to have notice of all facts which can be charged against the attorney. (Link v. Wabash Railroad Co. (1962) 370 U.S. 626, 633). Plaintiff cannot hide behind Wideman’s claimed negligence.

Plaintiffs assert that “due to Attorney Richard Wideman’s serious medical conditions, he was unable to eff to effectively convey Plaintiffs’ discovery responses, respond to Defendants’ communications, or take the necessary steps to comply with the Court’s order in a timely manner.” An examination of the record supports a finding that Wideman was ill but does not support a finding that he was completely unable to perform any work. Indeed, unbelievably, while Wideman claims that he was too ill to practice law, he appeared at a trial setting conference on January 6, 2025. Plaintiff’s evidence also reflects that Wideman performed the following work while he was in “a fight my life” and “incapable of leaving the hospital, let alone practicing law”: (a) Wideman responded to emails on November 12, November 13 to November 21, December 6, December 7, December 12, December 26 and January 29; (b) Wideman prepared and sent Plaintiffs a bill on December 12; (c) Wideman told Plaintiffs to pay the sanctions on December 13; (d) Wideman drafted the Notice of Unavailability on January 17; (e) Wideman signed the Substitution of Counsel on or about February 7; and (f) Wideman drafted and signed his Declaration in Opposition to this Motion on February 26. 

One of numerous glaring omissions in the Opposition is the lack of evidence regarding Wideman’s practice so that the Court could conclude that Wideman practices alone and could not get the assistance of another attorney or support staff.

Plaintiffs were aware that deadlines were not being met and realized their compliance had not been properly facilitated.

An attorney’s affidavit swearing the attorney alone is responsible for the conduct resulting in sanctions will not prevent terminating or other sanctions against the client if the court finds the affidavit lacks credibility or the attorney was not the cause. (See Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622; Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1251 [CCP § 473(b) relief denied where attorney affidavit claiming sole responsibility for discovery misconduct directly contradicted counsel’s prior statements to trial court implicating clients]; Behm v. Clear View Technologies (2015) 241 Cal.App.4th 1, 15-16 [same].) 

Plaintiffs attempt to paint themselves as blameless by asserting that they “acted promptly once they became aware” of the need to comply with the Order and that there was “not any willful noncompliance on Plaintiff’s part.” This argument has no merit as it is not supported by the evidence. Indeed, Plaintiff’s evidence supports the finding that Plaintiffs were well aware of their obligations under the Order and that they did nothing to comply with their obligations.

Willfulness is not required for issue and evidence sanctions under CCP § 2023.030(b) and (c)].) A number of cases have upheld dismissal or other “doomsday” sanctions against a client based solely on the attorney’s errors or misconduct. The client’s remedy is said to be against the attorney for malpractice. (Bernstein v. Allstate Ins. Co. (1981) 119 Cal.App,3d 449, 451; see Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 899.)

Supported by the Declaration of Kenneth Coronel; 21 pages; summarized: read and considered.

Supported by the Declaration of James Devine; 69 pages; summarized: Takes issues with the discovery he received.

Supported by Evidentiary Objections; 10 pages;

Rulings:

#1 DENIED

#2 DENIED

#3 DENIED

#4. DENIED

#5. DENIED

#6 DENIED

#7 SUSTAINED

#8 DENIED

#9 DENIED

#10 SUSTAINED

#11 DENIED

#12 SUSTAINED

#13 DENIED

#14 DENIED

#15 SUSTAINED

#16 SUSTAINED

#17 DENIED

#18 DENIED

#19 SUSTAINED

#20 DENIED

#21 DENIED

#22 DENIED

#23 DENIED

#24 DENIED

#25 DENIED

#26 DENIED

#27 DENIED

#28 DENIED

#29 DENIED

#30 DENIED

The Court’s Conclusions

Here, Plaintiffs’ noncompliance was plainly not willful but was instead the result of

extraordinary circumstances beyond their control—specifically, their attorney’s severe medical incapacity, which included multiple hospitalizations and a stroke. Plaintiffs were unaware of the scope and timing of their outstanding discovery obligations because their attorney failed to inform them, instead assuring them that he had the matter under control despite his inability to provide effective representation. Once Plaintiffs retained new counsel, they acted promptly to comply with all outstanding discovery obligations.

Because there was no willful misconduct, and given that Defendants now have all the

discovery they sought, the extreme remedy of evidentiary or issue sanctions would be disproportionate and unwarranted.

This Court is not willing to levy doomsday or monetary sanctions on the facts present here.

Under Code of Civil Procedure § 2023.030(a), monetary sanctions shall not be imposed if the party subject to sanctions acted with substantial justification or if other circumstances make the imposition of sanctions unjust. Here, Plaintiffs’ delay resulted from extraordinary circumstances beyond their control—their attorney’s severe medical incapacity, which left them uninformed of their outstanding discovery obligations. Given these circumstances and the fact that Plaintiffs have already paid the previously ordered sanctions, any further monetary sanctions would be unjust under § 2023.030(a).

The Court did find Link v. Wabash Railroad Co. (1962) 370 U.S. 626, 633) helpful. The Court notes that case is not in any way like the facts of this case. The Court has read it carefully and finds the dissent made some good points that this Court endorses. The dissent said [summarized] even assuming all the blame for the delay in this case could be laid at the feet of plaintiff's lawyer, it seems to be contrary to the most fundamental ideas of fairness and justice to impose the punishment for the lawyer's failure to prosecute upon the plaintiff who, so far as this record shows, was simply trusting his lawyer to take care of his case as clients generally do. Moreover, to say that the sins or faults or delinquencies of a lawyer must always be visited upon his client so as to impose tremendous financial penalties upon him, as here, is to ignore the practicalities and realities of the lawyer-client relationship. Lawyers everywhere in this country are granted licenses presumably because of their skill, their integrity, their learning in the law and their dependability. While there may be some clients sophisticated enough in the affairs of the world to be able to select the good from the bad among this mass of lawyers throughout the country, this unfortunately cannot always be the case. The average individual called upon, perhaps for the first time in his life, to select a lawyer to try a lawsuit may happen to choose the best lawyer or he may happen to choose one of the worst. He has a right to rely at least to some extent upon the fact that a lawyer has a license. From this he is also entitled to believe that the lawyer has the ability to look out for his case, and that he should leave the lawyer free from constraint in doing so. Surely it cannot be said that there was a duty resting upon the laymen Plaintiffs, to try to supervise the daily professional services of the lawyer he had chosen to represent him. How could he know, even assuming that it is true, that his lawyer was a careless man or that he would have an adverse effect upon the trial judge by failing to appear when ordered? How could he know or why should he be presumed to know that it was his duty to see that the many steps a lawyer needs to take to bring his case to trial had been taken by his lawyer?

The Court did not find Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622 helpful; in that case the court noted trial was approaching in the more than four-year-old case; asking Pratt's counsel to explain fourteen months of stonewalling, it stated, "[I]t turns out that the same course of conduct continues even after notice of this hearing, and we're still sitting with the same stonewall.... It would appear that whether it's your tactics in the case or tactics ordered by your clients we are not progressing, and we continue with this impeding conduct." Numerous instances of such conduct were noted by the court, one of which involved Pratt's counsel having told the court his client did not have documents which, it turned out, the client did have. Counsel responded that he had given the court the information provided to him by his client: "If [the Pratt manager responsible for the documents] tells me we don't have them, I have to believe him." The Court said, “Finding lack of credibility an "ever continuing flavor" in the proceedings, it granted plaintiffs' motion "for the issue sanctions and evidentiary sanctions as requested." On its own motion, it struck Pratt's answer "in light of all the concerted activities to deter discovery." The Court of Appeal pointed out Pratt did not argue the sanctions were disproportionate to the discovery abuses; it conceded they are "suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he [or she] seeks" and found the trial court’s assessment of credibility was crucial and the fact was the court did not believe Pratt's attorney's sworn statement that the discovery fiasco was solely his fault. 

In the case before the Bench today, this Court does in fact believe Mr. Wideman’s declaration and supporting declarations and argument; there is no issue of credibility here. Moreover, this case before the Bench does not fall within the egregious fact pattern of deliberate and obvious consistent evasion of the Court Orders present in Johnson v. Pratt which brought on the doomsday order.   

The Court did not find Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1251 [CCP § 473(b)] helpful. In that case the Court of Appeal pointed out CCP 473 subdivision (b) provides mandatory relief from default or dismissal based on an attorney's affidavit of fault unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. The issue in the appeal was whether the statutes relief applies when the attorney and the client are both responsible for discovery misconduct that results in a default judgment or dismissal of the action. The Court found that subdivision (b) relief is available only when the attorney is solely responsible for the misconduct. The Court found that the client along with their attorney, knowingly failed to turn over documents in response to numerous discovery requests and court orders and the trial court properly denied relief under the mandatory provision of section 473.

That is NOT the case before the Bench today. This Court finds that the attorney was solely responsible for the conduct that occurred, and which brought on the doomsday order.

The Court did not find Behm v. Clear View Technologies (2015) 241 Cal.App.4th 1, 15-16 helpful. In that case the Court of Appeal found the trial court did not err in denying mandatory relief under section, subdivision (b), because there was support for the trial court's determination that the default was not incurred due to the mistake, inadvertence, surprise, or neglect of its prior attorney, Chang Yi, because his affidavit of fault was not credible. 

The Court did not find Defendants argument made that the Court should ignore Mr. Wideman’s declaration that he could not perform the work while he was in “a fight for my life” and “incapable of leaving the hospital, let alone practicing law,” persuasive. In support of their contention Defendants point to the fact (a) Wideman responded to emails on November 12, November 13 to November 21, December 6, December 7, December 12, December 26 and January 29; (b) Wideman prepared and sent Plaintiffs a bill on December 12; (c) Wideman told Plaintiffs to pay the sanctions on December 13; (d) Wideman drafted the Notice of Unavailability on January 17; (e) Wideman signed the Substitution of Counsel on or about February 7; and (f) Wideman drafted and signed his Declaration in Opposition to this Motion on February 26.  None of those facts support the contention made here. Responding to the extensive discovery was an entirely different matter than (a) through (f) above. Discovery responses are complex; rigorous; demanding and time consuming; none of the points made above meets that criterion.

The Court also does not agree with Defendants when they say one of numerous glaring omissions in the Opposition is the lack of evidence regarding Wideman’s practice so that the Court could conclude that Wideman practices alone justifies the remedy sought here because he did not get the assistance of another attorney or support staff. That contention might have merit if there was a prejudicial or extraordinary delay; but the Court does not find that occurred. There are now qualified lawyers on the case who have responded to the discovery and there is adequate time to resolve any outstanding issues.

This is not complicated litigation for the competent attorneys involved. Doomsday sanctions are not warranted. Neither are monetary sanctions.