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Court of Appeal:
Considering Discovery Abuses Not Alleged in Motion Is Error
Opinion Says Filing ‘Supplements’ Asserting New, Continuing Violations Did Not Provide Adequate Notice of Grounds Supporting Court’s Order Granting Terminating Sanctions
By Kimber Cooley, associate editor
Div. Three of the Fourth District Court of Appeal has reversed a defense judgment entered after a trial judge granted terminating sanctions based on findings that the plaintiff violated sections of the Civil Discovery Act not listed in the defendant’s original motion, saying the filing of “supplemental” papers during the two years that followed the initial request asserting new abuses failed to give the other side adequate notice.
In Monday’s unpublished opinion, authored by Justice Thomas A. Delaney and joined in by Acting Presiding Justice Maurice Sanchez and Justice Nathan Scott, the court said:
“[The plaintiff]…was not on notice it had to respond to the Supplements on the merits. If we were to conclude otherwise, parties would be forced to choose between, on the one hand, objecting to a filing as unauthorized, thereby potentially waiving their right to oppose the filing on the merits, and on the other hand, opposing the filing on the merits, thereby potentially waiving the objection that the filing was unauthorized and should not be considered.”
The question arose after plaintiff Tyler Spring filed a complaint against his former employer, Eon Reality Inc., a company providing AI-supported virtual reality products for use in education, industry, and sporting ventures, asserting claims for breach of contract, constructive discharge, and certain wage and hour violations.
Eon filed an answer asserting affirmative defenses, including mitigation of damages, as well as a cross-complaint alleging that Spring, its former chief financial officer, was never fired but instead had stopped coming to work after one of Eon’s founders had seen him secretly conspiring with a former officer of the company in breach of his duty of loyalty. The company later voluntarily moved to dismiss the cross-complaint, without prejudice.
Motion to Compel
In December 2019, Eon filed a motion to compel discovery, seeking further responses to certain discovery requests. The following month, Orange Superior Court Judge Glenn R. Salter granted the request in part and ordered the production of documents, subject to a protective order, relating to Spring’s efforts to find employment since leaving the company; no deadline for compliance was set.
Following a delay in the proceedings due to the COVID-19 pandemic, Eon filed a motion for terminating sanctions, asserting that Spring had not complied with the January 2020 order. Spring opposed the motion, claiming that he had turned over every responsive paper in his possession.
The sanctions motion and the trial date were continued for more than two more years. During that period, Eon filed two “supplements” to its request for sanctions, containing new evidence purportedly showing that Spring was continuing to violate discovery rules, including allegations that he permanently deleted a text message that “tends to disprove he was terminated by Eon—perhaps the most foundational disputed issue in this case.”
By September 12, 2023, the case had been reassigned to Orange Superior Court Judge Sheila O. Recio, who tentatively indicated that she did not believe terminating sanctions were warranted but was ultimately persuaded by Eon that the destruction of text messages and other abuses detailed in the supplemental filings justified the extreme remedy.
Recio said that she knew of “no requirement that the defendant has to first proceed with another motion…to the extent they believe the plaintiff failed to abide by the January…2020 Orders” and that “[t]he totality of the circumstances here suggest[ed]” that Spring repeatedly and willfully refused “to permit discovery or produce documents over a lengthy period of time, which result[ed] in evidence becoming unavailable.”
She imposed monetary sanctions of $5,000 against Spring and his counsel, identified in court records as Mark A. Obrien of the Los Angeles-based The Ruttenberg Law Firm, jointly and severally, and granted Eon’s request for terminating sanctions. A judgment of dismissal was entered.
Supplements to Motion
Delaney noted that “[a]ppellant argues the trial court abused its discretion by allowing Eon to ‘supplement’ the sanctions motion with other alleged violations of different sections of the Civil Discovery Act…that were never part of the original motion.”
Agreeing with the assertion, the justice pointed out that due process entitles a party to notice and an opportunity to be heard, a concept also codified in Code of Civil Procedure §2023.030, which provides that a court may sanction for misuse of discovery only after these conditions are met.
Quoting from the California Rules of Court, he also said that basic motion practice requires a moving party to “state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order.” Applying these principles to the case before the court, he wrote:
“Based on our independent review of the record, we agree with Spring that he did not receive adequate notice or opportunity to be heard before the trial court imposed terminating sanctions on different grounds than those stated in the notice of motion….The notice…stated it was ‘based on the grounds that [Spring] was compelled by order of this [c]ourt to provide further responses to Request for Production of Documents…, and [Spring] and his counsel are willfully withholding responsive documents that are directly relevant and indispensable to E[on]’s affirmative defense of mitigation of damages.”
He continued:
“The trial court, however, imposed terminating sanctions on grounds not captured by the notice of motion: that Eon ‘doesn’t have some of the documents because essentially some of it was destroyed.’ ”
Deficient Notice
The jurist acknowledged that “[e]ven where the notice is deficient, adequate notice might still be provided” if the supporting papers contain the grounds for relief sought or if the omitted issue was raised without objection before the trial court. Saying “neither circumstance is present here,” he remarked:
“First, spoliation of evidence was not raised as a ground for sanctions until Eon filed its first Supplement in June 2021, a month after briefing on the sanctions motion had been completed. According to Eon’s second Supplement filed in December 2021, the destroyed evidence was text messages tending ‘to disprove [Spring] was terminated by Eon.’…Second, Spring objected to the trial court’s consideration of the Supplements, by filing written objections on September 11, 2023 (after the first day of hearing on the sanctions motion) and raising the issue at the second day of the hearing.”
Rejecting Eon’s contention that notice should be deemed adequate because Spring had over one year to oppose the supplements in writing, which he failed to do. Delaney commented:
“We are not persuaded. While the length of time for a party to respond to new grounds not raised in the moving papers is certainly a factor in determining whether notice was adequate, it is not necessarily dispositive on the issue. Equally, if not more important, is how the new grounds are communicated. Civil motion practice generally allows for a motion, opposition, and reply; it does not authorize filing ‘supplements,’ much less ones that seek relief on new and different grounds. Eon could have just as easily filed another motion or an amended notice of motion; it chose not to.”
Finding the error to have been prejudicial, he declared:
“[I]t is reasonably probable Spring would have obtained a more favorable result if the trial court had considered only the grounds stated in the moving papers. Our conclusion is supported by the court’s tentative ruling, expressing the court’s inclination to impose issue sanctions over terminating sanctions, in addition to monetary sanctions.”
The case is Spring v. Eon Reality Inc., G063672.
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