Motion-Secondary: LAURA ESMERALDA CONTRERAS VS. CAROL BUTERWORTH et al

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                                CHARLES M. SCHAIBLE (173107)
101 California Street, 5th Floor
San Francisco, CA 94111

Telephone: (415) 683-1980
Facsimile: (415) 693-2222
Email: schaiblelaw@gmail.com

Attorney for Plaintiff
LAURA ESMERALDA CONTRERAS

ELECTRONICALLY
FILED

Supertor Court of Callfornia,
‘County of San Francisco

04/05/2017
Clerk of the Court
BY:SANDRA SCHIRO

Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

UNLIMITED JURISDICTION

LAURA ESMERALDA CONTRERAS,
Plaintiff,
Vv.
CAROL BUTTERWORTH, et al.,

Defendants.

No. CGC-09-488551
DISCOVERY

MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF PLAINTIFF
LAURA CONTRERAS’S MOTION FOR
SANCTIONS AGAINST DEFENDANTS
CURTIS DOWLING AND DOWLING &
MARQUEZ, LLP

COopE CIv. PROC. §§ 2023.010, 2023.030

Date: May 2, 2017

Time 9:00 a.m.

Dept: 302

Judge: Hon. Harold E. Kahn

Action Filed: May 19, 2009
Trial Date: Not Set

MPA ISO PLAINTIFF’S MOTION FOR SANCTIONS — CGC-09-488551I. INTRODUCTION

Plaintiff Laura Contreras moves, pursuant to Code of Civil Procedure sections
2023.010(g) and 2023.030(c), for an evidentiary sanction against defendants Curtis Dowling and
Dowling & Marquez, LLP (“the Dowling Defendants”). On July 8, 2014, this Court entered an
Order (“the Discovery Order”) compelling the Dowling Defendants to respond to discovery
served by Ms. Contreras regarding their insurance coverage. Since then, the Dowling Defendants
have persisted in a blatant and willful refusal to provide the discovery ordered by the Court.
Now, notwithstanding their continuing disobedience of the Discovery Order, the Dowling
Defendants seek to introduce evidence arising from the very insurance coverage as to which they
have denied discovery to Ms. Contreras. That evidence should be excluded from this action.

I. SUMMARY OF RELEVANT PROCEDURE

On January 16, 2014, Ms. Contreras served certain form interrogatories and requests for
production of documents on the Dowling Defendants. (Schaible Decl. § 2.) The Dowling
Defendants’ responses, which consisted solely of unmeritorious objections, were served, late, on
February 24, 2014. (/bid.)

On March 28, 2014, the Dowling Defendants moved to strike Ms. Contreras’s Fourth
Amended Complaint pursuant to the anti-SLAPP statute. (See Register of Actions, March 28,
2014.)

On April 10, 2014, Ms. Contreras moved to compel further responses to her form
interrogatories and requests for production, and for sanctions. (Schaible Decl. { 3.) The hearing
on this motion was continued to July 8, 2014, to permit the Court to rule on the Dowling
Defendants’ motion to strike. (/bid.)

On May 20, 2014, this Court entered Orders denying the Dowling Defendants’ motion to
strike and sanctioning them for making it. (See Register of Actions, May 20, 2014.)

On July 8, 2014, this Court entered the Discovery Order compelling the Dowling
Defendants to answer Ms. Contreras’s form interrogatories and to produce documents in response

to her requests for production. In addition, the Court held that all objections by the Dowling

2.

MPA ISO PLAINTIFF’S MOTION FOR SANCTIONS — CGC-09-488551Defendants to Ms. Contreras’s discovery had been waived, and sanctioned them in the amount of
$2,160 for their failure to respond to that discovery. (Schaible Decl. {| 4 and Exh, A.)

On July 17, 2014, the Dowling Defendants filed a notice of appeal from the Court’s
Orders denying their anti-SLAPP motion to strike and imposing sanctions in connection with that
motion. (See Register of Actions, July 17, 2014.)

On October 26, 2016, the Court of Appeal filed an Order reversing this Court’s Orders
and awarding attorneys’ fees to the Dowling Defendants pursuant to Code of Civil Procedure
section 425.16(c)(1). The remittitur was issued on February 3, 2017. (See Register of Actions,
February 3, 2017.)

On March 14, 2017, the Dowling Defendants filed a motion pursuant to the anti-SLAPP
statute seeking attorneys’ fees from Ms. Contreras in an amount exceeding $200,000. (Schaible
Decl. 45.) The motion is premised on invoices allegedly submitted to the Dowling Defendants,
and their insurer, by lawyers employed by that insurer. (/bid.)

On March 17, 2017, Ms. Contreras again requested that the Dowling Defendants comply,
at least in part, with the Discovery Order. (/d. § 6 and Exh. B.) Specifically, given the
intervening ruling by the Court of Appeal, Ms. Contreras limited her request to Form
Interrogatory No. 4.1 and any documents identified in the Dowling Defendants’ response to it.
(Ibid.) As Ms. Contreras explained, she needs this information in order to obtain discovery from
the Dowling Defendants’ insurer regarding the attorneys’ fees, if any, actually incurred by the
Dowling Defendants. (/d Exh. B and § 5.)

On March 29, 2017, the Dowling Defendants responded to Ms. Contreras that they would
not comply in even a limited fashion with the Discovery Order, and again refused to remit to Ms.
Contreras the sanctions imposed by the Court. (/d. Exh. B and { 6.)

Til. © ARGUMENT

Ms. Contreras now moves, pursuant to Code of Civil Procedure sections 2023.010(g) and
2023.030(c), for an evidentiary sanction against the Dowling Defendants. Specifically, Ms.
Contreras asks that any and all evidence pertaining to, or arising out of, the Dowling Defendants’

insurance coverage be excluded from this action. Because the Dowling Defendants have made
3.

MPA ISO PLAINTIFF’S MOTION FOR SANCTIONS — CGC-09-488551clear that they will not respond to Ms. Contreras’s discovery regarding their insurance, and in so
doing have willfully and contemptuously violated an Order of this Court, the sanction sought by
Ms. Contreras is more than justified here.
A. Sanctions Are Proper for Refusal to Comply with a Discovery Order
It is well established that when a party willfully refuses to comply with an order
compelling discovery, it is within the court’s discretion to impose nonmonetary sanctions up to
and including outright dismissal of the action. (See, e.g., Code Civ. Proc. § 2023.030.) As the

court held in Deyo v. Kilbourne (1978) 84 Cal.App.3d 771:

The sanction of dismissal or the rendition of a default judgment

against the disobedient party is ordinarily a drastic measure which

should be employed with caution. However, there is no question a

court is empowered to apply the ultimate sanction against a litigant

who persists in the outright refusal to comply with his discovery

obligations. The refusal to reveal material evidence is deemed an

admission that the claim or defense is without merit.
(Ud. at 793.) And although the “doomsday” sanction of dismissal is rarely justified, courts
routinely exclude evidence pertaining to or arising from the subject matter of improperly-
withheld discovery. For example, in Waicis v. Superior Court (1990) 226 Cal.App.3d 283, 287,
the First District Court of Appeal affirmed a trial court order excluding the testimony of a
recalcitrant deposition witness. In Deeter v. Angus (1986) 179 Cal.App.3d 241, 254, the same
court affirmed a trial court order excluding evidence pertaining to a recorded conversation after a
party refused to produce a tape recording of that conversation. In Thoren v. Johnston & Washer
(1972) 29 Cal.App.3d 270, 273, the appellate court affirmed an order excluding the testimony of a
witness whose identity a party failed to disclose in response to an interrogatory. As the court

there held:

The power of the trial court to bar the testimony of a witness
willfully excluded from an answer to an interrogatory seeking the
names of witnesses to an occurrence is found in the express
language of the discovery act and is an inherently necessary one if
the purposes of the act are to be achieved.

(bid.) And in Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1544, the court affirmed
exclusion of all evidence pertaining to documents that should have been produced, but were not,

even without the issuance of a prior order of the trial court.
4.

MPA ISO PLAINTIFF’S MOTION FOR SANCTIONS — CGC-09-488551B. An Exclusionary Sanction Is Proper in this Case

By repeatedly refusing to respond to interrogatories or produce documents, the
Dowling Defendants have not just willfully violated an Order of this Court. They have also
denied Ms. Contreras the opportunity to obtain evidence necessary to oppose their pending
motion for attorneys’ fees. (Schaible Decl. { 5.) As noted, the Dowling Defendants have filed a
motion pursuant to Code of Civil Procedure section 425.16 seeking more than $200,000 in
attorneys’ fees from Ms. Contreras. (/bid.) In declarations supporting that motion, the lawyers
who represented the Dowling Defendants aver that they did so pursuant to an agreement with an
unidentified insurance company, but that their clients were the Dowling Defendants and that they
“charged” the Dowling Defendants for the full amount of the fees they seek. (/bid.)

In support of her opposition to the Dowling Defendants’ motion, Ms. Contreras is entitled
to discovery from their insurer regarding these statements. As Code of Civil Procedure section
2017 plainly provides:

Unless otherwise limited by order of the court in accordance with
this title, any party may obtain discovery regarding any matter, not
privileged, that is relevant to the subject matter involved in the

pending action or fo the determination of any motion made in that
action...

(Code Civ. Proc. § 2017.010 (emphasis added); see also Save Open Space Santa Monica
Mountains v. Superior Court (2000) 84 Cal.App.4th 235, 250 [authorizing discovery in context of
Code of Civil Procedure section 1021.5 fee motion].) Specifically, Ms. Contreras is entitled to
verify not only the amount and reasonableness of the attorneys’ fees claimed by the Dowling
Defendants, but also the allegation that the Dowling Defendants actually paid those fees. Yet
without knowing even the name of the Dowling Defendants’ insurer, and without a copy of the
policy by which they are insured, Ms. Contreras cannot even commence such discovery.
(Schaible Decl. § 5.) Thus, the Dowling Defendants’ continuing refusal to comply with the
Discovery Order makes it impossible for Ms. Contreras to offer any reasonable opposition to their
attorneys’ fees motion, which is set for hearing on May 17, 2017. This is manifestly unfair, and
fully justifies the imposition of an evidentiary sanction. (See Vallbona, 43 Cal.App.4th 1544;

Deyo, 84 Cal.App.3d at 793.)
5.

MPA ISO PLAINTIFF’S MOTION FOR SANCTIONS — CGC-09-488551Iv. CONCLUSION

To remedy the Dowling Defendants’ willful refusal to comply with the Discovery Order
as it pertains to their insurance coverage, all evidence arising from that insurance coverage should

be excluded from this action.

Dated: April 3, 2017

By: _/s/ Charles M. Schaible
Charles M. Schaible

Attorney for Plaintiff
LAURA CONTRERAS

6.

MPA ISO PLAINTIFF’S MOTION FOR SANCTIONS — CGC-09-488551