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1 MARK S. POSARD (SBN: 208790)
ELIZABETH L. CHRISTIE (SBN: 341615)
2 mposard@grsm.com
lchristie@grsm.com
3 GORDON REES SCULLY MANSUKHANI, LLP
315 Pacific Avenue
4 San Francisco, CA 94111
Telephone: (415) 875-3343
5 Facsimile: (415) 986-8054
6 Attorneys for Defendants
DARLA BARNES-SMITH, ANIMAL FRIENDS RESCUE PROJECT, DOE’ 1-50
7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF MONTEREY
10 TRISHA TENNYSON ) CASE NO. 22CV001071
)
11 Plaintiff, ) MEMORANDUM IN SUPPORT OF
Gordon Rees Scully Mansukhani, LLP
) DEFENDANT’S MOTION FOR
275 Battery Street, Suite 2000
12 vs. ) TERMINATING SANCTIONS
San Francisco, CA 94111
)
13 DARLA BARNES-SMITH, ANIMAL ) Accompanying Papers:
FRIENDS RESCUE PROJECT, DOE’ 1-50 1. Notice of Motion and Motion to
14 ) Compel
Defendants. ) 2. Declaration of Elizabeth L. Christie
15 ) 3. [Proposed] Order
)
16 ) Date: June 28, 2024
) Dept.: 13A
17 ) Time: 8:30 a.m.
)
18 ) Complaint filed: April 28, 2022
)
19 )
INTRODUCTION
20
21 Trisha Tennyson (“Plaintiff”) has repeatedly misused the discovery process by failing to
22 appear for five properly noticed depositions, even after this Court’s Order compelling her to
23 appear. Further, on March 25, 2024, this Court put Plaintiff on notice that if she did not sit for
24 her deposition it could lead to the termination of her lawsuit. Since then, Plaintiff has failed to sit
25 for two depositions and failed to appear at the Parties’ Mandatory Settlement Conference on
26 April 23, 2024, for which this Court issued an order for Plaintiff to show cause. Defendants
27 Darla Smith and Animal Friends Rescue Project (“Defendants”) and their counsel have made
28 every effort to schedule Plaintiff’s deposition, but have been stonewalled at every turn.
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MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR TERMINATING SANCTIONS
1 Plaintiff’s failure to follow proper discovery protocols required Defendants to seek court
2 intervention to solve the disputes.
3 Defendant filed a motion to compel Plaintiff to serve discovery responses and sit for her
4 deposition, which this Court granted on November 8, 2022. Plaintiff never served written
5 discovery responses following the court order. Additionally, in November 2023, Plaintiff again
6 failed to appear at her properly noticed deposition, thereby failing to comply with this Court’s
7 Order. Thereafter, Defendants filed a motion for terminating sanctions and with hearing date of
8 March 15, 2024. Plaintiff failed to appear at the hearing. While this Court denied Defendants’
9 motion, it put Plaintiff on notice that failure to sit for her deposition again could lead to the
10 termination of her case. Immediately thereafter, Defendants properly noticed Plaintiff’s
11 deposition for March 15, 2024. Plaintiff did not object to the notice; however, she again did not
Gordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
12 appear. Defendant later noticed her deposition for April 24, 2024, and, again Plaintiff did not
San Francisco, CA 94111
13 object to the notice or appear. In fact, counsel for Defendants has been unable to reach Plaintiff
14 by email or phone for weeks. This is now the fifth properly noticed deposition that Plaintiff has
15 refused to sit for.
16 Defendants now seek terminating sanctions for Plaintiff’s continued and repeated failure
17 to comply with this Court’s order compelling her to serve code-compliant discovery responses
18 and sit for deposition, as well has her failure to litigate and participate in the court ordered
19 settlement conference.
20 I. FACTS
21 A. Brief Overview of Underlying Facts
22 This case arises out of the confiscation of Plaintiff’s cats by the Monterey Country
23 Animal Services and subsequent transfer of the cats to Defendants. (Plaintiff’s Complaint, First
24 Cause of Action ¶ 1.) Plaintiff brought this current action pro se asserting three causes of action:
25 1) Defamation; 2) Intentional Infliction of Emotional Distress; and 3) Theft by Deception.
26 (Plaintiff’s Complaint.) Defendants filed an Answer to Complaint on May 31, 2022.
27 B. Plaintiff Fails to Appear for Her Deposition on Numerous Occasions,
Causing This Court to Compel Her to Appear
28
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MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR TERMINATING SANCTIONS
1 On May 31, 2022, Defendants properly noticed Plaintiff’s deposition via Zoom for
2 August 29, 2022, to which Plaintiff did not timely object. (Declaration of Elizabeth L. Christie
3 (“Christie Decl.”) ¶ 2, 5, Exh. A.) However, on August 29, 2022, Plaintiff emailed Defendants
4 two hours before the start of the deposition stating she was unable to attend due to a work
5 conflict. (Christie Decl. ¶ 6, Exh. B.) Defendants were forced to cancel the deposition and
6 incurred a late cancellation fee. (Id.)
7 On August 30, 2022, Defendants noticed Plaintiff s deposition via Zoom for September
8 20, 2022. (Christie Decl. ¶ 7, Exh. C.) Again, Plaintiff did not timely object. (Christie Decl. ¶ 8.)
9 On September 20, 2022, at 8:47 a.m. Plaintiff left a voicemail for Defendants asserting she was
10 unable to attend the deposition due to another conflict. (Christie Decl. ¶ 9, Exh. D.) Plaintiff
11 again forced Defendants to cancel a properly noticed deposition and incur cancellation fees. (Id.)
Gordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
12 In response to Plaintiff’s voicemail, Defendants responded via email stating that they would file
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13 a motion to compel and request monetary sanctions. (Id.)
14 Defendants served Request for Production of Documents on May 31, 2022. (Christie
15 Decl. ¶ 3.) Defendants’ Request for Production of Documents consisted of a reasonable amount
16 of 30 requests directly pertaining to Plaintiff’s Complaint. Plaintiff did not serve responses or
17 objections on the response due date of July 5, 2022. (Christie Decl. ¶ 4.) To date, Plaintiff has
18 not served responses to Defendants’ properly served discovery requests. (Id.)
19 On October 4, 2022, Defendants filed a motion to compel Plaintiff to appear for
20 deposition and serve discovery responses. (Christie Decl. ¶ 10.) This Court granted Defendants’
21 motion on November 8, 2022, ordering Plaintiff to sit for deposition and serve code-compliant
22 discovery responses within thirty days. (Christie Decl. ¶10, Exh. E.)
23 C. Following Months of Plaintiff’s Inactivity Defendant Noticed Plaintiff’s
Deposition, Which Plaintiff Again Refused to Attend or Provide Alternative
24 Dates
25 Plaintiff failed to appear at two case management conferences on August 23, 2022, and
26 April 11, 2023. (Christie Decl. ¶ 11.) She eventually appeared at the case management
27 conference on October 3, 2023. Thereafter, Defendant properly noticed Plaintiff’s deposition for
28 November 28, 2023, to which Plaintiff did not object. (Christie Decl. ¶ ¶ 12-13, Exh. F.) Prior to
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MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR TERMINATING SANCTIONS
1 the scheduled deposition, Defendants attempted to reach Plaintiff by phone twice on November
2 27, 2023, and left two messages requesting a call back. (Christie Decl. ¶ 14.) Defendants never
3 heard from Plaintiff. (Id.)
4 Accordingly, Defendants appeared at the deposition location on November 28, 2023.
5 (Christie Decl. ¶ 15.) Plaintiff, however, did not appear. (Id, Exh. H.) Defendants emailed
6 Plaintiff that same day explaining that because she did not appear at her deposition or provide us
7 with alternative dates to depose her, Defendants would be moving forward with filing a motion
8 for terminating sanctions. (Christie Decl. ¶ 16.) Plaintiff never responded to this email. (Id.)
9 D. Following Defendants’ First Motion for Terminating Sanctions, This Court
Put Plaintiff On Notice That Failure to Sit for Deposition Would Lead to
10 Termination of Her Lawsuit
11 Thereafter, Defendants filed a motion for terminating sanctions and with hearing dates of
Gordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
12 March 1, 2024 and March 15, 2024. (Id. ¶ 17.) Plaintiff failed to appear at either hearing date.
San Francisco, CA 94111
13 (Id.) While this Court denied Defendants’ motion, it put Plaintiff on notice that failure to sit for
14 her deposition again could lead to the termination of her case. (Id., Exh. J.) Immediately
15 thereafter, Defendants properly noticed Plaintiff’s deposition for March 25, 2024. Plaintiff did
16 not object to the notice; however, she again did not appear. (Id. ¶ 18, 19, Exh. L.)
17 On April 19, 2024, Defendants noticed Plaintiff deposition for April 24, 2024. (Id. ¶ 17,
18 Exh. M.) Plaintiff did not object to the notice and, again, she did not appear. (Id. ¶ 20, 21.)
19 Counsel for Defendants attempted to call Plaintiff on the cell phone number she provided
20 to counsel on at least ten different occasions between April 9, 2024 and April 23, 2024, with no
21 success. (Id. ¶ 22.) Counsel for Defendants also emailed Plaintiff on multiple occasions to
22 attempt to schedule a call. Plaintiff never responded. (Id., Exh. N.) Altogether, Plaintiff has
23 failed to sit for five properly noticed depositions.
24 E. Chronological Timeline of Defendants’ Efforts to Depose Plaintiff
25 May 31, 2022: Defendants noticed Plaintiff’s deposition for August 29, 2022.
26 August 29, 2022: Plaintiff emailed Defendants two hours before the start of the
27 deposition stating she was unable to attend.
28 August 30, 2022: Defendants noticed Plaintiff s deposition for September 20, 2022.
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MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR TERMINATING SANCTIONS
1 September 20, 2022: Plaintiff canceled deposition minutes before start time.
2 October 4, 2022: Defendants filed a motion to compel Plaintiff to appear for deposition
3 and serve discovery responses.
4 November 8, 2022: This Court granted Defendants’ motion to compel Plaintiff’s
5 deposition and serve discovery responses.
6 November 2022 – October 2023: Defendants are unable to reach Plaintiff.
7 November 7, 2023: Defendants properly noticed Plaintiff’s deposition for November 28,
8 2023.
9 November 28, 2023: Plaintiff fails to appear at deposition.
10 March 1, 2024: First hearing on motion for terminating sanctions. Plaintiff fails to appear.
11 March 15, 2024: Second hearing on motion for terminating sanctions. Plaintiff again fails
Gordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
12 to appear.
San Francisco, CA 94111
13 March 25, 2024: Plaintiff fails to appear at fourth properly noticed deposition.
14 April 23, 2024: Plaintiff fails to appear at Mandatory Settlement Conference and this
15 Court issues an order to show cause.
16 April 24, 2024: Plaintiff fails to appear at fifth properly noticed deposition.
17 II. ARGUMENT
A. Terminating sanctions are appropriate given Plaintiff’s misuse of the discovery
18 process and disregard of a Court order
19 1. Lesser sanctions have failed to secure Plaintiff’s cooperation
20 Code of Civil Procedure section 2023.030 authorizes a trial court to exercise its discretion
21 to impose a terminating sanction by way of an order dismissing the case. Code Civ. Proc., §
22 2023.030, subd. (d)(3). Courts typically consider “the totality of the circumstances” when
23 deciding whether to impose a terminating sanction. (Lang v. Hochman (2000) 77 Cal.App.4th
24 1225, 1246.) It has been held that a court acted within its discretion in dismissing plaintiffs' case
25 after plaintiffs failed to respond to discovery requests, disregarded the court's discovery orders,
26 and ignored opposing counsel's attempts to meet and confer. (Jerry's Shell v. Equilon
27 Enterprises, LLC (2005) 134 Cal.App.4th 1058.) A court may properly take into account an
28 overall demonstrated intent to thwart discovery and to be evasive. (Housing Authority of the City
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MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR TERMINATING SANCTIONS
1 of Alameda v. Gomez (1972) Cal.App.3d 366, 373 [terminating sanctions upheld where “the trial
2 court could justifiably conclude that defendant had no intention of being deposed and would
3 continue to engage in evasive tactics toward that end”].)
4 Here, Plaintiff has demonstrated that she has no intention of being deposed. First, she
5 cancelled two properly noticed depositions at the “eleventh hour,” claiming that she was unable
6 to attend for various reasons. (Christie Decl. at ¶¶ 2-9.) Such conduct caused this Court to order
7 her to sit for deposition on November 8, 2022; however, following the order, Plaintiff became
8 unreachable and ignored the Court order. (Id. at ¶¶ 10-11.) Once Defendants could get in contact
9 with Plaintiff, Defendants again properly noticed her deposition in person to ensure her
10 attendance. (Id. at ¶ 12.) Plaintiff ultimately, failed to appear at the noticed deposition in defiance
11 of this Court’s order. (Id. at ¶¶ 14-15.)
Gordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
12 Most notably, Plaintiff then failed to appear at two properly noticed depositions
San Francisco, CA 94111
13 following this Court’s order denying Defendants’ motion for terminating sanctions, which
14 explicitly put Plaintiff on notice that if she failed to appear at deposition it could lead to
15 termination of her lawsuit. (Id. at ¶¶ 17-21.) Not only did Plaintiff not appear at the noticed
16 depositions, she was unresponsive to numerous calls and emails from counsel for Defendants.
17 (Id. ¶ 22.)
18 On top of that, Plaintiff has failed to appear at the Mandatory Settlement Conference on
19 April 23, 2024, causing this Court to issue an order to show cause. (Id. ¶ 23.) Finally, to date,
20 Plaintiff has not served responses to the discovery requests, further in defiance of this Court’s
21 order. (Id. at ¶ 4.)
22 Plaintiff has flagrantly ignored her discovery obligations since May 2022. She has failed
23 to appear at numerous hearings, culminating in her failure to appear at the mandatory settlement
24 conference. Plaintiff has been entirely unreachable and disinterested in engaging in the litigation
25 process. Such conduct should not be condoned. Rather, the facts presented here warrant
26 terminating sanctions, and Plaintiffs’ action should be dismissed.
27 2. Plaintiff has willfully disobeyed the Court’s Order
28 A court may terminate a party’s complaint for “willful” failure to obey a discovery order.
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MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR TERMINATING SANCTIONS
1 (Liberty Mut. Fire Ins. Co. v. LcL Administrators, Inc., supra, 163 Cal.App.4th at 1102.)
2 Willfulness need not amount to a wrongful intention to disobey. Rather, a “conscious or
3 intentional failure to act, as distinguished from accidental or involuntary noncompliance, is
4 sufficient to invoke a penalty.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 787-788.) Thus,
5 a party’s failure to obey an order is “willful” when it understood its obligation, had the ability to
6 comply, and failed to comply. (Morgan v. Southern Cal. Rapid Transit Dist. (1987) 192
7 Cal.App.3d 976, 983-984, disapproved on other grounds in Schwab v. Rondel Homes, Inc. (1991)
8 53 Cal.3d 428.) A party that failed to comply with a discovery order has the burden of showing
9 that its failure was not willful. (Deyo v. Kilbourne, supra, 84 Cal.App.3d at 788.)
10 “Only two facts are absolutely prerequisite to imposition of the sanction: (1) there must
11 be a failure to comply . . . and (2) the failure must be willful . . . .” (R.S. Creative, Inc. v.
Gordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
12 Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 496; internal citations omitted.) The court has
San Francisco, CA 94111
13 “inherent discretionary power to dismiss claims with prejudice.” (Lyons v. Wickhorst (1986) 42
14 Cal.3d 911, 915.) “A decision to order terminating sanctions should not be made lightly. But
15 where a violation is willful, preceded by a history of abuse, and the evidence shows that less
16 severe sanctions would not produce compliance with the discovery rules, the trial court is
17 justified in imposing the ultimate sanction.” (Mileikowsky v. Tenet Healthsystem (2005) 128
18 Cal.App.4th 262, 279-280.) Further, a court abuses its discretion in not imposing terminating
19 sanctions where there exists persistent and flagrant discovery misconduct that leads to further
20 discovery misconduct at trial. (See Doppes v. Bentley Motors, Inc. (2009)174 Cal.App.4th 967,
21 993 [trial court abused its discretion in failing to issue terminating sanctions for repeated
22 violation of court orders and directives].)
23 Defendants have been attempting to take Plaintiff’s deposition for nearly two years, since
24 May 2022. Defendants properly noticed five depositions, all of which Plaintiff has failed to
25 appear. Despite Defendants’ multiple attempts to meet and confer with Plaintiff, Plaintiff has
26 continued to violate both the Code of Civil Procedure and this Court’s Orders. Plaintiff has
27 demonstrated that she has no intention of complying with the Order, as she continues to avoid
28 her obligation to sit for deposition, even after Defendants urged her to provide a date, time, and
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MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR TERMINATING SANCTIONS
1 location that is workable for her. Plaintiff has now willfully disobeyed both this Court’s order
2 compelling her to deposition, as well as the order informing Plaintiff that failure to do so could
3 lead to termination of the case. It is clear that Court intervention is required, and Defendant
4 respectfully requests that the Court dismiss Plaintiffs’ complaint, with prejudice.
5 B. Should this Court decline to impose terminating sanctions, nonmonetary sanctions
for misuse of the discovery process must be issued to deter Plaintiff’s wrongful
6 conduct
7 Courts have held that nonmonetary sanctions for misuse of the discovery process may
8 be imposed in certain circumstances that do not involve the sanctioned party's failure to obey
9 an order compelling discovery. In Karlsson v. Ford Motor Co., (2006) 140 Cal.App.4th 1202,
10 the trial court found that the defendant had failed, among other things, to produce evidence as
11 agreed after being ordered by the court to meet and confer and had evaded discovery by
Gordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
12 producing an excessive quantity of documents without proper itemization. (Id. at 1209-1211.)
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13 "[V]iolation of a discovery order is not a prerequisite to issue and evidentiary sanctions when
14 the offending party has engaged in a pattern of willful discovery abuse that causes the
15 unavailability of evidence. (Id. at 1215.) The trial court found that the defendant had failed to
16 act in good faith, and imposed evidence and issue sanctions. (Id. at 1211-1212.)
17 As noted by the court in New Albertsons, Inc. v. Superior Court, (2008) 168
18 Cal.App.4th 1403, “if it is sufficiently egregious, misconduct committed in connection with the
19 failure to produce evidence in discovery may justify the imposition of nonmonetary sanctions
20 even absent a prior order compelling discovery, or its equivalent. Furthermore, a prior order
21 may not be necessary where it is reasonably clear that obtaining such an order would be futile.”
22 Here, Plaintiff has defied a court order, and her willful abuse of the discovery process has
23 effectively precluded Defendants from developing their defense. Plaintiff has failed to provide
24 any responses to Defendants’ Request for Production of documents and has failed to produce
25 documents in compliance with Code of Civil Procedure section 2031.280(a). Most importantly,
26 Plaintiff has failed to sit for five properly noticed depositions, spanning a period of nearly two
27 years. To date, Plaintiff refuses to engage in any communications with Defendants to schedule
28
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MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR TERMINATING SANCTIONS
1 her deposition. Defendants are unable to develop their defense to Plaintiff’s claims as they
2 cannot gather the necessary facts from Plaintiff.
3 C. Additional monetary sanctions are warranted based on Plaintiffs’ ongoing misuse of
the discovery process
4
5 “In lieu of or in addition to [an issue sanction, an evidence sanction, or a terminating
6 sanction], the court may impose a monetary sanction.” (Code Civ. Proc. § 2030.290, subd. (c).)
7 Monetary sanctions, including reasonable costs and attorney’s fees, must be imposed on a party
8 and its attorney that misuses the discovery process by failing to respond to discovery and fails to
9 obey a court order to provide discovery, unless that party acted with a substantial justification.
10 (Code Civ. Proc. § 2030.290, subd. (c).)
11 There can be no justification for Plaintiff’s failure to obey this Court’s order to sit for
Gordon Rees Scully Mansukhani, LLP
deposition and serve discovery responses. Plaintiff simply refuses to comply with discovery
275 Battery Street, Suite 2000
12
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13 obligations, even after being ordered to do so and even after being sanctioned by the Court.
14 As such, Defendant continues to incur unnecessary fees and costs to seek relief to which they
15 are clearly entitled. Accordingly, Defendant respectfully requests monetary sanctions against
16 Plaintiffs and their counsel in the amount of $787.50.
17 CONCLUSION
18 For the foregoing reasons, Defendants respectfully request that the Court grant
19 Defendants’ motion and issue an Order for terminating sanctions. In the alternative, Defendant
20 respectfully requests this court award Defendant monetary sanctions in the amount of $787.50
21 against Plaintiff. As set forth in more detail in the Declaration of Elizabeth Christie, these costs
22 represent the time for the legal fees spent to prepare the instant motion.
23 Dated: April 24, 2024 GORDON REES SCULLY MANSUKHANI,
LLP
24
By:
25 Mark S. Posard
Elizabeth L. Christie
26 Attorneys for Defendants
DARLA BARNES-SMITH,
27 ANIMAL FRIENDS RESCUE
PROJECT, DOE’ 1-50
28
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MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR TERMINATING SANCTIONS
1
2
3 PROOF OF SERVICE
I am a resident of the State of California, over the age of eighteen years, and not a party
4 to the within action. My business address is:315 Pacific Avenue, San Francisco, California. I
served the within documents:
5
MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR
6 TERMINATING SANCTIONS
7
PERSONAL SERVICE: By causing the document(s) listed above to be personally
delivered to the person(s) at the address(es) set forth below.
8
9 MAIL: By placing the document(s) listed above in a sealed envelope with postage
thereon fully prepaid, in United States mail in the State of California addressed as set
forth below.
10
11
FACSIMILE: By transmitting via facsimile the document(s) listed above to the fax
number(s) set forth below on this date before 5:00 p.m.
Gordon Rees Scully Mansukhani, LLP
ELECTRONIC TRANSMISSION: By transmitting a pdf.format version of the
275 Battery Street, Suite 2000
12
San Francisco, CA 94111
document(s) via electronic mail to the party(s) identified on the service list using the
13 email address(es) indicated.
14 OVERNIGHT: By placing a true copy thereof enclosed in a sealed envelope, at a
station designated for collection and processing of envelopes and packages for
15 overnight delivery by FedEx (or other overnight service) as part of the ordinary
business practices of GORDON REES SCULLY MANSUKHANI, LLP described
16 below, addressed as follows:
Trisha Tennyson
17 1011 Post Drive
Salinas, CA 93907
18 E-mail: trishahitt@gmail.com
Trisha Tennyson in pro per
19
20
I am readily familiar with the firm’s practice of collection and processing correspondence
21 for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same
day with postage thereon fully prepaid in the ordinary course of business. I am aware that on
22 motion of the party served, service is presumed invalid if postal cancellation date or postage
meter date is more than one day after the date of deposit for mailing in affidavit.
23
24 I declare under penalty of perjury under the laws of the State of California that the above
is true and correct. Executed on April 25, 2024 at San Francisco, California.
25
26 ~(j JZ.. ,....
27
{} ~
Julie Vernon
28
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MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR TERMINATING SANCTIONS
Preview
1 MARK S. POSARD (SBN: 208790) ELIZABETH L. CHRISTIE (SBN: 341615) 2 mposard@grsm.com lchristie@grsm.com 3 GORDON REES SCULLY MANSUKHANI, LLP 315 Pacific Avenue 4 San Francisco, CA 94111 Telephone: (415) 875-3343 5 Facsimile: (415) 986-8054 6 Attorneys for Defendants DARLA BARNES-SMITH, ANIMAL FRIENDS RESCUE PROJECT, DOE’ 1-50 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF MONTEREY 10 TRISHA TENNYSON ) CASE NO. 22CV001071 ) 11 Plaintiff, ) MEMORANDUM IN SUPPORT OF Gordon Rees Scully Mansukhani, LLP ) DEFENDANT’S MOTION FOR 275 Battery Street, Suite 2000 12 vs. ) TERMINATING SANCTIONS San Francisco, CA 94111 ) 13 DARLA BARNES-SMITH, ANIMAL ) Accompanying Papers: FRIENDS RESCUE PROJECT, DOE’ 1-50 1. Notice of Motion and Motion to 14 ) Compel Defendants. ) 2. Declaration of Elizabeth L. Christie 15 ) 3. [Proposed] Order ) 16 ) Date: June 28, 2024 ) Dept.: 13A 17 ) Time: 8:30 a.m. ) 18 ) Complaint filed: April 28, 2022 ) 19 ) INTRODUCTION 20 21 Trisha Tennyson (“Plaintiff”) has repeatedly misused the discovery process by failing to 22 appear for five properly noticed depositions, even after this Court’s Order compelling her to 23 appear. Further, on March 25, 2024, this Court put Plaintiff on notice that if she did not sit for 24 her deposition it could lead to the termination of her lawsuit. Since then, Plaintiff has failed to sit 25 for two depositions and failed to appear at the Parties’ Mandatory Settlement Conference on 26 April 23, 2024, for which this Court issued an order for Plaintiff to show cause. Defendants 27 Darla Smith and Animal Friends Rescue Project (“Defendants”) and their counsel have made 28 every effort to schedule Plaintiff’s deposition, but have been stonewalled at every turn. -1- MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR TERMINATING SANCTIONS 1 Plaintiff’s failure to follow proper discovery protocols required Defendants to seek court 2 intervention to solve the disputes. 3 Defendant filed a motion to compel Plaintiff to serve discovery responses and sit for her 4 deposition, which this Court granted on November 8, 2022. Plaintiff never served written 5 discovery responses following the court order. Additionally, in November 2023, Plaintiff again 6 failed to appear at her properly noticed deposition, thereby failing to comply with this Court’s 7 Order. Thereafter, Defendants filed a motion for terminating sanctions and with hearing date of 8 March 15, 2024. Plaintiff failed to appear at the hearing. While this Court denied Defendants’ 9 motion, it put Plaintiff on notice that failure to sit for her deposition again could lead to the 10 termination of her case. Immediately thereafter, Defendants properly noticed Plaintiff’s 11 deposition for March 15, 2024. Plaintiff did not object to the notice; however, she again did not Gordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 12 appear. Defendant later noticed her deposition for April 24, 2024, and, again Plaintiff did not San Francisco, CA 94111 13 object to the notice or appear. In fact, counsel for Defendants has been unable to reach Plaintiff 14 by email or phone for weeks. This is now the fifth properly noticed deposition that Plaintiff has 15 refused to sit for. 16 Defendants now seek terminating sanctions for Plaintiff’s continued and repeated failure 17 to comply with this Court’s order compelling her to serve code-compliant discovery responses 18 and sit for deposition, as well has her failure to litigate and participate in the court ordered 19 settlement conference. 20 I. FACTS 21 A. Brief Overview of Underlying Facts 22 This case arises out of the confiscation of Plaintiff’s cats by the Monterey Country 23 Animal Services and subsequent transfer of the cats to Defendants. (Plaintiff’s Complaint, First 24 Cause of Action ¶ 1.) Plaintiff brought this current action pro se asserting three causes of action: 25 1) Defamation; 2) Intentional Infliction of Emotional Distress; and 3) Theft by Deception. 26 (Plaintiff’s Complaint.) Defendants filed an Answer to Complaint on May 31, 2022. 27 B. Plaintiff Fails to Appear for Her Deposition on Numerous Occasions, Causing This Court to Compel Her to Appear 28 -2- MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR TERMINATING SANCTIONS 1 On May 31, 2022, Defendants properly noticed Plaintiff’s deposition via Zoom for 2 August 29, 2022, to which Plaintiff did not timely object. (Declaration of Elizabeth L. Christie 3 (“Christie Decl.”) ¶ 2, 5, Exh. A.) However, on August 29, 2022, Plaintiff emailed Defendants 4 two hours before the start of the deposition stating she was unable to attend due to a work 5 conflict. (Christie Decl. ¶ 6, Exh. B.) Defendants were forced to cancel the deposition and 6 incurred a late cancellation fee. (Id.) 7 On August 30, 2022, Defendants noticed Plaintiff s deposition via Zoom for September 8 20, 2022. (Christie Decl. ¶ 7, Exh. C.) Again, Plaintiff did not timely object. (Christie Decl. ¶ 8.) 9 On September 20, 2022, at 8:47 a.m. Plaintiff left a voicemail for Defendants asserting she was 10 unable to attend the deposition due to another conflict. (Christie Decl. ¶ 9, Exh. D.) Plaintiff 11 again forced Defendants to cancel a properly noticed deposition and incur cancellation fees. (Id.) Gordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 12 In response to Plaintiff’s voicemail, Defendants responded via email stating that they would file San Francisco, CA 94111 13 a motion to compel and request monetary sanctions. (Id.) 14 Defendants served Request for Production of Documents on May 31, 2022. (Christie 15 Decl. ¶ 3.) Defendants’ Request for Production of Documents consisted of a reasonable amount 16 of 30 requests directly pertaining to Plaintiff’s Complaint. Plaintiff did not serve responses or 17 objections on the response due date of July 5, 2022. (Christie Decl. ¶ 4.) To date, Plaintiff has 18 not served responses to Defendants’ properly served discovery requests. (Id.) 19 On October 4, 2022, Defendants filed a motion to compel Plaintiff to appear for 20 deposition and serve discovery responses. (Christie Decl. ¶ 10.) This Court granted Defendants’ 21 motion on November 8, 2022, ordering Plaintiff to sit for deposition and serve code-compliant 22 discovery responses within thirty days. (Christie Decl. ¶10, Exh. E.) 23 C. Following Months of Plaintiff’s Inactivity Defendant Noticed Plaintiff’s Deposition, Which Plaintiff Again Refused to Attend or Provide Alternative 24 Dates 25 Plaintiff failed to appear at two case management conferences on August 23, 2022, and 26 April 11, 2023. (Christie Decl. ¶ 11.) She eventually appeared at the case management 27 conference on October 3, 2023. Thereafter, Defendant properly noticed Plaintiff’s deposition for 28 November 28, 2023, to which Plaintiff did not object. (Christie Decl. ¶ ¶ 12-13, Exh. F.) Prior to -3- MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR TERMINATING SANCTIONS 1 the scheduled deposition, Defendants attempted to reach Plaintiff by phone twice on November 2 27, 2023, and left two messages requesting a call back. (Christie Decl. ¶ 14.) Defendants never 3 heard from Plaintiff. (Id.) 4 Accordingly, Defendants appeared at the deposition location on November 28, 2023. 5 (Christie Decl. ¶ 15.) Plaintiff, however, did not appear. (Id, Exh. H.) Defendants emailed 6 Plaintiff that same day explaining that because she did not appear at her deposition or provide us 7 with alternative dates to depose her, Defendants would be moving forward with filing a motion 8 for terminating sanctions. (Christie Decl. ¶ 16.) Plaintiff never responded to this email. (Id.) 9 D. Following Defendants’ First Motion for Terminating Sanctions, This Court Put Plaintiff On Notice That Failure to Sit for Deposition Would Lead to 10 Termination of Her Lawsuit 11 Thereafter, Defendants filed a motion for terminating sanctions and with hearing dates of Gordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 12 March 1, 2024 and March 15, 2024. (Id. ¶ 17.) Plaintiff failed to appear at either hearing date. San Francisco, CA 94111 13 (Id.) While this Court denied Defendants’ motion, it put Plaintiff on notice that failure to sit for 14 her deposition again could lead to the termination of her case. (Id., Exh. J.) Immediately 15 thereafter, Defendants properly noticed Plaintiff’s deposition for March 25, 2024. Plaintiff did 16 not object to the notice; however, she again did not appear. (Id. ¶ 18, 19, Exh. L.) 17 On April 19, 2024, Defendants noticed Plaintiff deposition for April 24, 2024. (Id. ¶ 17, 18 Exh. M.) Plaintiff did not object to the notice and, again, she did not appear. (Id. ¶ 20, 21.) 19 Counsel for Defendants attempted to call Plaintiff on the cell phone number she provided 20 to counsel on at least ten different occasions between April 9, 2024 and April 23, 2024, with no 21 success. (Id. ¶ 22.) Counsel for Defendants also emailed Plaintiff on multiple occasions to 22 attempt to schedule a call. Plaintiff never responded. (Id., Exh. N.) Altogether, Plaintiff has 23 failed to sit for five properly noticed depositions. 24 E. Chronological Timeline of Defendants’ Efforts to Depose Plaintiff 25 May 31, 2022: Defendants noticed Plaintiff’s deposition for August 29, 2022. 26 August 29, 2022: Plaintiff emailed Defendants two hours before the start of the 27 deposition stating she was unable to attend. 28 August 30, 2022: Defendants noticed Plaintiff s deposition for September 20, 2022. -4- MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR TERMINATING SANCTIONS 1 September 20, 2022: Plaintiff canceled deposition minutes before start time. 2 October 4, 2022: Defendants filed a motion to compel Plaintiff to appear for deposition 3 and serve discovery responses. 4 November 8, 2022: This Court granted Defendants’ motion to compel Plaintiff’s 5 deposition and serve discovery responses. 6 November 2022 – October 2023: Defendants are unable to reach Plaintiff. 7 November 7, 2023: Defendants properly noticed Plaintiff’s deposition for November 28, 8 2023. 9 November 28, 2023: Plaintiff fails to appear at deposition. 10 March 1, 2024: First hearing on motion for terminating sanctions. Plaintiff fails to appear. 11 March 15, 2024: Second hearing on motion for terminating sanctions. Plaintiff again fails Gordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 12 to appear. San Francisco, CA 94111 13 March 25, 2024: Plaintiff fails to appear at fourth properly noticed deposition. 14 April 23, 2024: Plaintiff fails to appear at Mandatory Settlement Conference and this 15 Court issues an order to show cause. 16 April 24, 2024: Plaintiff fails to appear at fifth properly noticed deposition. 17 II. ARGUMENT A. Terminating sanctions are appropriate given Plaintiff’s misuse of the discovery 18 process and disregard of a Court order 19 1. Lesser sanctions have failed to secure Plaintiff’s cooperation 20 Code of Civil Procedure section 2023.030 authorizes a trial court to exercise its discretion 21 to impose a terminating sanction by way of an order dismissing the case. Code Civ. Proc., § 22 2023.030, subd. (d)(3). Courts typically consider “the totality of the circumstances” when 23 deciding whether to impose a terminating sanction. (Lang v. Hochman (2000) 77 Cal.App.4th 24 1225, 1246.) It has been held that a court acted within its discretion in dismissing plaintiffs' case 25 after plaintiffs failed to respond to discovery requests, disregarded the court's discovery orders, 26 and ignored opposing counsel's attempts to meet and confer. (Jerry's Shell v. Equilon 27 Enterprises, LLC (2005) 134 Cal.App.4th 1058.) A court may properly take into account an 28 overall demonstrated intent to thwart discovery and to be evasive. (Housing Authority of the City -5- MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR TERMINATING SANCTIONS 1 of Alameda v. Gomez (1972) Cal.App.3d 366, 373 [terminating sanctions upheld where “the trial 2 court could justifiably conclude that defendant had no intention of being deposed and would 3 continue to engage in evasive tactics toward that end”].) 4 Here, Plaintiff has demonstrated that she has no intention of being deposed. First, she 5 cancelled two properly noticed depositions at the “eleventh hour,” claiming that she was unable 6 to attend for various reasons. (Christie Decl. at ¶¶ 2-9.) Such conduct caused this Court to order 7 her to sit for deposition on November 8, 2022; however, following the order, Plaintiff became 8 unreachable and ignored the Court order. (Id. at ¶¶ 10-11.) Once Defendants could get in contact 9 with Plaintiff, Defendants again properly noticed her deposition in person to ensure her 10 attendance. (Id. at ¶ 12.) Plaintiff ultimately, failed to appear at the noticed deposition in defiance 11 of this Court’s order. (Id. at ¶¶ 14-15.) Gordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 12 Most notably, Plaintiff then failed to appear at two properly noticed depositions San Francisco, CA 94111 13 following this Court’s order denying Defendants’ motion for terminating sanctions, which 14 explicitly put Plaintiff on notice that if she failed to appear at deposition it could lead to 15 termination of her lawsuit. (Id. at ¶¶ 17-21.) Not only did Plaintiff not appear at the noticed 16 depositions, she was unresponsive to numerous calls and emails from counsel for Defendants. 17 (Id. ¶ 22.) 18 On top of that, Plaintiff has failed to appear at the Mandatory Settlement Conference on 19 April 23, 2024, causing this Court to issue an order to show cause. (Id. ¶ 23.) Finally, to date, 20 Plaintiff has not served responses to the discovery requests, further in defiance of this Court’s 21 order. (Id. at ¶ 4.) 22 Plaintiff has flagrantly ignored her discovery obligations since May 2022. She has failed 23 to appear at numerous hearings, culminating in her failure to appear at the mandatory settlement 24 conference. Plaintiff has been entirely unreachable and disinterested in engaging in the litigation 25 process. Such conduct should not be condoned. Rather, the facts presented here warrant 26 terminating sanctions, and Plaintiffs’ action should be dismissed. 27 2. Plaintiff has willfully disobeyed the Court’s Order 28 A court may terminate a party’s complaint for “willful” failure to obey a discovery order. -6- MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR TERMINATING SANCTIONS 1 (Liberty Mut. Fire Ins. Co. v. LcL Administrators, Inc., supra, 163 Cal.App.4th at 1102.) 2 Willfulness need not amount to a wrongful intention to disobey. Rather, a “conscious or 3 intentional failure to act, as distinguished from accidental or involuntary noncompliance, is 4 sufficient to invoke a penalty.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 787-788.) Thus, 5 a party’s failure to obey an order is “willful” when it understood its obligation, had the ability to 6 comply, and failed to comply. (Morgan v. Southern Cal. Rapid Transit Dist. (1987) 192 7 Cal.App.3d 976, 983-984, disapproved on other grounds in Schwab v. Rondel Homes, Inc. (1991) 8 53 Cal.3d 428.) A party that failed to comply with a discovery order has the burden of showing 9 that its failure was not willful. (Deyo v. Kilbourne, supra, 84 Cal.App.3d at 788.) 10 “Only two facts are absolutely prerequisite to imposition of the sanction: (1) there must 11 be a failure to comply . . . and (2) the failure must be willful . . . .” (R.S. Creative, Inc. v. Gordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 12 Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 496; internal citations omitted.) The court has San Francisco, CA 94111 13 “inherent discretionary power to dismiss claims with prejudice.” (Lyons v. Wickhorst (1986) 42 14 Cal.3d 911, 915.) “A decision to order terminating sanctions should not be made lightly. But 15 where a violation is willful, preceded by a history of abuse, and the evidence shows that less 16 severe sanctions would not produce compliance with the discovery rules, the trial court is 17 justified in imposing the ultimate sanction.” (Mileikowsky v. Tenet Healthsystem (2005) 128 18 Cal.App.4th 262, 279-280.) Further, a court abuses its discretion in not imposing terminating 19 sanctions where there exists persistent and flagrant discovery misconduct that leads to further 20 discovery misconduct at trial. (See Doppes v. Bentley Motors, Inc. (2009)174 Cal.App.4th 967, 21 993 [trial court abused its discretion in failing to issue terminating sanctions for repeated 22 violation of court orders and directives].) 23 Defendants have been attempting to take Plaintiff’s deposition for nearly two years, since 24 May 2022. Defendants properly noticed five depositions, all of which Plaintiff has failed to 25 appear. Despite Defendants’ multiple attempts to meet and confer with Plaintiff, Plaintiff has 26 continued to violate both the Code of Civil Procedure and this Court’s Orders. Plaintiff has 27 demonstrated that she has no intention of complying with the Order, as she continues to avoid 28 her obligation to sit for deposition, even after Defendants urged her to provide a date, time, and -7- MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR TERMINATING SANCTIONS 1 location that is workable for her. Plaintiff has now willfully disobeyed both this Court’s order 2 compelling her to deposition, as well as the order informing Plaintiff that failure to do so could 3 lead to termination of the case. It is clear that Court intervention is required, and Defendant 4 respectfully requests that the Court dismiss Plaintiffs’ complaint, with prejudice. 5 B. Should this Court decline to impose terminating sanctions, nonmonetary sanctions for misuse of the discovery process must be issued to deter Plaintiff’s wrongful 6 conduct 7 Courts have held that nonmonetary sanctions for misuse of the discovery process may 8 be imposed in certain circumstances that do not involve the sanctioned party's failure to obey 9 an order compelling discovery. In Karlsson v. Ford Motor Co., (2006) 140 Cal.App.4th 1202, 10 the trial court found that the defendant had failed, among other things, to produce evidence as 11 agreed after being ordered by the court to meet and confer and had evaded discovery by Gordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 12 producing an excessive quantity of documents without proper itemization. (Id. at 1209-1211.) San Francisco, CA 94111 13 "[V]iolation of a discovery order is not a prerequisite to issue and evidentiary sanctions when 14 the offending party has engaged in a pattern of willful discovery abuse that causes the 15 unavailability of evidence. (Id. at 1215.) The trial court found that the defendant had failed to 16 act in good faith, and imposed evidence and issue sanctions. (Id. at 1211-1212.) 17 As noted by the court in New Albertsons, Inc. v. Superior Court, (2008) 168 18 Cal.App.4th 1403, “if it is sufficiently egregious, misconduct committed in connection with the 19 failure to produce evidence in discovery may justify the imposition of nonmonetary sanctions 20 even absent a prior order compelling discovery, or its equivalent. Furthermore, a prior order 21 may not be necessary where it is reasonably clear that obtaining such an order would be futile.” 22 Here, Plaintiff has defied a court order, and her willful abuse of the discovery process has 23 effectively precluded Defendants from developing their defense. Plaintiff has failed to provide 24 any responses to Defendants’ Request for Production of documents and has failed to produce 25 documents in compliance with Code of Civil Procedure section 2031.280(a). Most importantly, 26 Plaintiff has failed to sit for five properly noticed depositions, spanning a period of nearly two 27 years. To date, Plaintiff refuses to engage in any communications with Defendants to schedule 28 -8- MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR TERMINATING SANCTIONS 1 her deposition. Defendants are unable to develop their defense to Plaintiff’s claims as they 2 cannot gather the necessary facts from Plaintiff. 3 C. Additional monetary sanctions are warranted based on Plaintiffs’ ongoing misuse of the discovery process 4 5 “In lieu of or in addition to [an issue sanction, an evidence sanction, or a terminating 6 sanction], the court may impose a monetary sanction.” (Code Civ. Proc. § 2030.290, subd. (c).) 7 Monetary sanctions, including reasonable costs and attorney’s fees, must be imposed on a party 8 and its attorney that misuses the discovery process by failing to respond to discovery and fails to 9 obey a court order to provide discovery, unless that party acted with a substantial justification. 10 (Code Civ. Proc. § 2030.290, subd. (c).) 11 There can be no justification for Plaintiff’s failure to obey this Court’s order to sit for Gordon Rees Scully Mansukhani, LLP deposition and serve discovery responses. Plaintiff simply refuses to comply with discovery 275 Battery Street, Suite 2000 12 San Francisco, CA 94111 13 obligations, even after being ordered to do so and even after being sanctioned by the Court. 14 As such, Defendant continues to incur unnecessary fees and costs to seek relief to which they 15 are clearly entitled. Accordingly, Defendant respectfully requests monetary sanctions against 16 Plaintiffs and their counsel in the amount of $787.50. 17 CONCLUSION 18 For the foregoing reasons, Defendants respectfully request that the Court grant 19 Defendants’ motion and issue an Order for terminating sanctions. In the alternative, Defendant 20 respectfully requests this court award Defendant monetary sanctions in the amount of $787.50 21 against Plaintiff. As set forth in more detail in the Declaration of Elizabeth Christie, these costs 22 represent the time for the legal fees spent to prepare the instant motion. 23 Dated: April 24, 2024 GORDON REES SCULLY MANSUKHANI, LLP 24 By: 25 Mark S. Posard Elizabeth L. Christie 26 Attorneys for Defendants DARLA BARNES-SMITH, 27 ANIMAL FRIENDS RESCUE PROJECT, DOE’ 1-50 28 -9- MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR TERMINATING SANCTIONS 1 2 3 PROOF OF SERVICE I am a resident of the State of California, over the age of eighteen years, and not a party 4 to the within action. My business address is:315 Pacific Avenue, San Francisco, California. I served the within documents: 5 MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR 6 TERMINATING SANCTIONS 7 PERSONAL SERVICE: By causing the document(s) listed above to be personally delivered to the person(s) at the address(es) set forth below. 8 9 MAIL: By placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in United States mail in the State of California addressed as set forth below. 10 11 FACSIMILE: By transmitting via facsimile the document(s) listed above to the fax number(s) set forth below on this date before 5:00 p.m. Gordon Rees Scully Mansukhani, LLP ELECTRONIC TRANSMISSION: By transmitting a pdf.format version of the 275 Battery Street, Suite 2000 12 San Francisco, CA 94111 document(s) via electronic mail to the party(s) identified on the service list using the 13 email address(es) indicated. 14 OVERNIGHT: By placing a true copy thereof enclosed in a sealed envelope, at a station designated for collection and processing of envelopes and packages for 15 overnight delivery by FedEx (or other overnight service) as part of the ordinary business practices of GORDON REES SCULLY MANSUKHANI, LLP described 16 below, addressed as follows: Trisha Tennyson 17 1011 Post Drive Salinas, CA 93907 18 E-mail: trishahitt@gmail.com Trisha Tennyson in pro per 19 20 I am readily familiar with the firm’s practice of collection and processing correspondence 21 for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on 22 motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after the date of deposit for mailing in affidavit. 23 24 I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on April 25, 2024 at San Francisco, California. 25 26 ~(j JZ.. ,.... 27 {} ~ Julie Vernon 28 -10- MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR TERMINATING SANCTIONS