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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA BARBARA
Dated and Entered: 04/05/2021 Time: 10:00 AM
Judicial Officer: Colleen K Sterne
Deputy Clerk: Kary Swan Dept: SB Dept 5
Deputy Sheriff: David Allcott
Court Reporter: Shelley Cockrell Case No: 19CV02429
David G Bertrand et al vs Jessica Berry
Parties Present:
Berry, Jessica Defendant
Coffin, Mark T Attorney
NATURE OF PROCEEDINGS: Motion: Strike
Counsel appeared on Zoom.
Ms. Berry appeared in person.
Oral argument presented.
Tentative is affirmed.
TENTATIVE RULING: Plaintiffs’ motion for terminating sanctions against defendant is granted.
Defendant’s answer to plaintiffs’ complaint is ordered stricken, with prejudice. A default judgment shall be
entered in favor of plaintiffs and against defendant.
BACKGROUND:
This is an action for defamation, intentional infliction of emotional distress, elder abuse, and related
causes of action. Plaintiffs are David G. Bertrand (“Bertrand”), age 91, and his business manager,
Dorothy Churchill-Johnson (“Churchill-Johnson”), age 78. Defendant is Jessica Berry (“Berry”). Berry
lived in an apartment owned by Bertrand and occasionally assisted him with his rental properties. In
October 2017, after the expiration of her lease, Berry was asked to vacate her apartment, but she
refused, forcing Bertrand to file a complaint for unlawful detainer. Following her eviction, Berry allegedly
engaged in numerous disparaging and defamatory communications with third parties about Bertrand and
Churchill-Johnson.
Since appearing in the action, Berry has repeatedly failed to participate in discovery in any meaningful
way and has disobeyed two court orders regarding her discovery responses and deposition. On March 8,
2021, the court found defendant in contempt. Notwithstanding this finding, Berry has continued to
disregard her discovery obligations and Bertrand and Churchill-Johnson now move the court for an order
for terminating sanctions. Berry opposes the motion.
SC-2411 (Revised July 1, 2013) MINUTE ORDER
ANALYSIS:
Code of Civil Procedure Section 2023.030 provides:
“[T[he court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may
impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery
process:
“(d) The court may impose a terminating sanction by one of the following orders:
“(1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of
the discovery process.
“(2) An order staying further proceedings by that party until an order for discovery is obeyed.
“(3) An order dismissing the action, or any part of the action, of that party.
“(4) An order rendering a judgment by default against that party.”
Misuses of the discovery process include “[f]ailing to respond to or submit to an authorized method of
discovery” and/or “[d]isobeying a court order to provide discovery.” Code Civ. Proc. §2023.010, subds.
(d), (g). Numerous cases have affirmed the imposition of terminating sanctions where the defendant
failed to comply with court orders to answer interrogatories or produce documents. See, e.g., Laguna
Autobody v. Farmers Insurance Exchange (1991) 231 Cal.App.3d 481, 490; Cornwall v. Santa Monica
Dairy Company (1977) 66 Cal.App.3d 250, 253; and Williams v. Travelers Insurance Company (1957) 49
Cal.App.3d 805, 811.
On July 27, 2020, plaintiffs served supplemental interrogatories and supplemental request for production
of documents on Berry. (Jaske Reply Dec., ¶¶ 2, 3, Exs. A, B.) On August 7, 2020, Berry acknowledged
receipt of the supplemental discovery and indicated that she would provide responses “by the end of next
week.” (Jaske Reply Dec., ¶ 5, Ex. D.) When Berry failed to provide her responses to the supplemental
discovery or agree to a date for her deposition, plaintiffs brought a motion to compel on November 9,
2020, which the court granted. Berry was ordered to provide her responses to the supplemental
interrogatories and supplemental request for production, without objections, by November 23, 2020, and
to appear for her deposition on December 10, 2020, via a remote internet platform. (Jaske Dec., ¶ 3, Ex.
B.) Berry had knowledge of the order as she attended the hearing on the motion. (Ibid.)
Berry violated the court’s order by failing to provide responses to the supplemental discovery, by refusing
to answer questions at her deposition, and by abruptly terminating her deposition after only an hour.
(Motion, pp. 3:25-4:3.) On February 8, 2021, plaintiffs brought a second motion to compel. The court
granted the motion and ordered Berry to provide verified responses to plaintiffs’ supplemental discovery,
without objections, by the close of business on February 8, 2021, and to submit to her continued
deposition on February 16, 2021, at 10:00 a.m. (Jaske Dec., ¶ 4, Ex. C.) Again, Berry had knowledge of
the order as she attended the hearing on the motion. (Ibid.) However, Berry failed to provide responses
to plaintiffs’ supplemental discovery and plaintiffs were forced to continue her February 16, 2021
deposition. (Motion, p. 4:15-17.) Berry also failed to appear at the mandatory settlement conference on
February 19, 2021. (MSC Minute Order, 2-19-21.)
SC-2411 (Revised July 1, 2013) MINUTE ORDER
On March 8, 2021, at an Order to Show Cause hearing, the court found Berry in contempt, but indicated
that Berry could purge the contempt by complying with the court’s previous discovery orders by (1)
serving complete, verified, and objection-free responses to plaintiffs’ supplemental discovery by the close
of business on March 9, 2021, and (2) attending her continued deposition via Zoom on March 12, 2021,
at 10:00 a.m. (Jaske Dec., ¶ 5, Ex. D.) No discovery responses were received from Berry and plaintiffs
were once again forced to continue her deposition to avoid incurring a late cancellation fee. (Jaske Dec.,
¶ 10.) On March 11, 2021, Berry sent an email to plaintiffs’ counsel, stating that the discovery questions
were “based on frauds” and that she did not feel the questions were “legal.” (Jaske Dec., ¶ 7, Ex. F.)
In her opposition, Berry argues that she never received plaintiffs’ supplemental discovery, but this is not
credible. On August 7, 2020 and then again on September 24, 2020, Berry indicated that she would
provide responses to the supplemental discovery. (Jaske Dec., ¶¶ 5, 9, Exs. D, H.) When Berry failed to
serve her responses, plaintiffs filed and served a motion to compel, which included copies of plaintiffs’
supplemental interrogatories and document request as exhibits. (Jaske Reply Dec., ¶ 11, Ex. J.) On
February 12, 2021, plaintiffs’ counsel sent an email to Berry that again attached all of plaintiffs’
supplemental discovery. (Jaske Reply Dec., ¶ 12, Ex. K.) Later that day, Berry responded with an email
of her own, stating, “I’m sending the police over.” (Jaske Reply Dec., ¶ 14, Ex. M.)
It is clear that defendant has no intention of complying with her discovery obligations or this court’s
previous orders and plaintiffs’ motion for terminating sanctions will be granted. Berry has failed to serve
responses to plaintiffs’ supplemental interrogatories and request for production not once, not twice, but
three times. Pursuant to Code of Civil Procedure Section 2023.030, subdivision (d), Berry’s answer to the
complaint is ordered stricken and a default judgment is ordered entered against her. In accordance with
Code of Civil Procedure Section 585, subdivision (b), plaintiffs may schedule a “prove-up” hearing, in this
department, at which time they may present evidence in the form of affidavits or declarations in support
of their claims.
DARREL E. PARKER, EXECUTIVE OFFICER Minutes Prepared by:
Kary Swan , Deputy
SC-2411 (Revised July 1, 2013) MINUTE ORDER
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SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA BARBARA Dated and Entered: 04/05/2021 Time: 10:00 AM Judicial Officer: Colleen K Sterne Deputy Clerk: Kary Swan Dept: SB Dept 5 Deputy Sheriff: David Allcott Court Reporter: Shelley Cockrell Case No: 19CV02429 David G Bertrand et al vs Jessica Berry Parties Present: Berry, Jessica Defendant Coffin, Mark T Attorney NATURE OF PROCEEDINGS: Motion: Strike Counsel appeared on Zoom. Ms. Berry appeared in person. Oral argument presented. Tentative is affirmed. TENTATIVE RULING: Plaintiffs’ motion for terminating sanctions against defendant is granted. Defendant’s answer to plaintiffs’ complaint is ordered stricken, with prejudice. A default judgment shall be entered in favor of plaintiffs and against defendant. BACKGROUND: This is an action for defamation, intentional infliction of emotional distress, elder abuse, and related causes of action. Plaintiffs are David G. Bertrand (“Bertrand”), age 91, and his business manager, Dorothy Churchill-Johnson (“Churchill-Johnson”), age 78. Defendant is Jessica Berry (“Berry”). Berry lived in an apartment owned by Bertrand and occasionally assisted him with his rental properties. In October 2017, after the expiration of her lease, Berry was asked to vacate her apartment, but she refused, forcing Bertrand to file a complaint for unlawful detainer. Following her eviction, Berry allegedly engaged in numerous disparaging and defamatory communications with third parties about Bertrand and Churchill-Johnson. Since appearing in the action, Berry has repeatedly failed to participate in discovery in any meaningful way and has disobeyed two court orders regarding her discovery responses and deposition. On March 8, 2021, the court found defendant in contempt. Notwithstanding this finding, Berry has continued to disregard her discovery obligations and Bertrand and Churchill-Johnson now move the court for an order for terminating sanctions. Berry opposes the motion. SC-2411 (Revised July 1, 2013) MINUTE ORDER ANALYSIS: Code of Civil Procedure Section 2023.030 provides: “[T[he court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process: “(d) The court may impose a terminating sanction by one of the following orders: “(1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process. “(2) An order staying further proceedings by that party until an order for discovery is obeyed. “(3) An order dismissing the action, or any part of the action, of that party. “(4) An order rendering a judgment by default against that party.” Misuses of the discovery process include “[f]ailing to respond to or submit to an authorized method of discovery” and/or “[d]isobeying a court order to provide discovery.” Code Civ. Proc. §2023.010, subds. (d), (g). Numerous cases have affirmed the imposition of terminating sanctions where the defendant failed to comply with court orders to answer interrogatories or produce documents. See, e.g., Laguna Autobody v. Farmers Insurance Exchange (1991) 231 Cal.App.3d 481, 490; Cornwall v. Santa Monica Dairy Company (1977) 66 Cal.App.3d 250, 253; and Williams v. Travelers Insurance Company (1957) 49 Cal.App.3d 805, 811. On July 27, 2020, plaintiffs served supplemental interrogatories and supplemental request for production of documents on Berry. (Jaske Reply Dec., ¶¶ 2, 3, Exs. A, B.) On August 7, 2020, Berry acknowledged receipt of the supplemental discovery and indicated that she would provide responses “by the end of next week.” (Jaske Reply Dec., ¶ 5, Ex. D.) When Berry failed to provide her responses to the supplemental discovery or agree to a date for her deposition, plaintiffs brought a motion to compel on November 9, 2020, which the court granted. Berry was ordered to provide her responses to the supplemental interrogatories and supplemental request for production, without objections, by November 23, 2020, and to appear for her deposition on December 10, 2020, via a remote internet platform. (Jaske Dec., ¶ 3, Ex. B.) Berry had knowledge of the order as she attended the hearing on the motion. (Ibid.) Berry violated the court’s order by failing to provide responses to the supplemental discovery, by refusing to answer questions at her deposition, and by abruptly terminating her deposition after only an hour. (Motion, pp. 3:25-4:3.) On February 8, 2021, plaintiffs brought a second motion to compel. The court granted the motion and ordered Berry to provide verified responses to plaintiffs’ supplemental discovery, without objections, by the close of business on February 8, 2021, and to submit to her continued deposition on February 16, 2021, at 10:00 a.m. (Jaske Dec., ¶ 4, Ex. C.) Again, Berry had knowledge of the order as she attended the hearing on the motion. (Ibid.) However, Berry failed to provide responses to plaintiffs’ supplemental discovery and plaintiffs were forced to continue her February 16, 2021 deposition. (Motion, p. 4:15-17.) Berry also failed to appear at the mandatory settlement conference on February 19, 2021. (MSC Minute Order, 2-19-21.) SC-2411 (Revised July 1, 2013) MINUTE ORDER On March 8, 2021, at an Order to Show Cause hearing, the court found Berry in contempt, but indicated that Berry could purge the contempt by complying with the court’s previous discovery orders by (1) serving complete, verified, and objection-free responses to plaintiffs’ supplemental discovery by the close of business on March 9, 2021, and (2) attending her continued deposition via Zoom on March 12, 2021, at 10:00 a.m. (Jaske Dec., ¶ 5, Ex. D.) No discovery responses were received from Berry and plaintiffs were once again forced to continue her deposition to avoid incurring a late cancellation fee. (Jaske Dec., ¶ 10.) On March 11, 2021, Berry sent an email to plaintiffs’ counsel, stating that the discovery questions were “based on frauds” and that she did not feel the questions were “legal.” (Jaske Dec., ¶ 7, Ex. F.) In her opposition, Berry argues that she never received plaintiffs’ supplemental discovery, but this is not credible. On August 7, 2020 and then again on September 24, 2020, Berry indicated that she would provide responses to the supplemental discovery. (Jaske Dec., ¶¶ 5, 9, Exs. D, H.) When Berry failed to serve her responses, plaintiffs filed and served a motion to compel, which included copies of plaintiffs’ supplemental interrogatories and document request as exhibits. (Jaske Reply Dec., ¶ 11, Ex. J.) On February 12, 2021, plaintiffs’ counsel sent an email to Berry that again attached all of plaintiffs’ supplemental discovery. (Jaske Reply Dec., ¶ 12, Ex. K.) Later that day, Berry responded with an email of her own, stating, “I’m sending the police over.” (Jaske Reply Dec., ¶ 14, Ex. M.) It is clear that defendant has no intention of complying with her discovery obligations or this court’s previous orders and plaintiffs’ motion for terminating sanctions will be granted. Berry has failed to serve responses to plaintiffs’ supplemental interrogatories and request for production not once, not twice, but three times. Pursuant to Code of Civil Procedure Section 2023.030, subdivision (d), Berry’s answer to the complaint is ordered stricken and a default judgment is ordered entered against her. In accordance with Code of Civil Procedure Section 585, subdivision (b), plaintiffs may schedule a “prove-up” hearing, in this department, at which time they may present evidence in the form of affidavits or declarations in support of their claims. DARREL E. PARKER, EXECUTIVE OFFICER Minutes Prepared by: Kary Swan , Deputy SC-2411 (Revised July 1, 2013) MINUTE ORDER