But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.'" The defamation claim against Triplett was based on the following statement that she posted on February 11, 2005 on lawschooldiscussion.org, pretending to be a student who took a TestMasters class the previous summer: Triplett testified that, although she did not take a TestMasters class the previous summer at UCLA, she had sat in on a TestMasters class from an instructor named Shelly Harrison who spoke with such a "very thick southern accent" that "it was difficult at times to hear what he was saying."
imposed on plaintiff the burden to prove falsity of the statements"].). at pp.
These computerized efforts to cover their tracks included a "Secure Erase option," run on July 26, 2007, which allows the user "to wipe all free space on the hard drive by overwriting the data once, seven, or thirty-five times with random ones and zeros," and a sophisticated program called "BASH" used to find and delete (or confirm the deletion of) computer files.14 TestMasters contended that this evidence showed that defendants knew about the emails and intentionally concealed them from production, deleted them, or both. 930-933; In re Marriage of Fuller, at p.

. ", The trial court then instructed the jury that a "former employee has the right to compete with his or her former employer provided that such competition is fairly and legally conducted," and that "[i]n the absence of a protectable confidential information, the right to compete fairly outweighs the employer's right to protect its customer base from competitive solicitations by former employees if such competitive solicitations are first commenced after the employment relationship has terminated." The problem with Teti's argument is that Teti made a tactical decision at the punitive damages phase of the trial to tell the jury that his net worth was $78,000, not negative $1.5 million including the discovery sanctions award. ), Brewster v. Southern Pacific Transportation Co. (1991) 235 Cal.App.3d 701 involved a different statute, section 128.5, which authorized a court to "order a party or the party's attorney to pay `any reasonable expenses, including attorney's fees, incurred by another party as a result of bad faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.'" Indeed, the trial court stated that in exercising its discretion it was "mindful that the object of a nonmonetary sanction is not to punish the offending party but rather it is to protect the other party who was entitled to certain discovery by creating a satisfactory remedy.

Defendants made plans in October 2004 to meet with attorneys to discuss these issues, and to get advice on what they "were and weren't allowed to do in terms of figuring out whether this potential business was feasible while still employed by TestMasters." The jury, however, was entitled to disbelieve Stepka's (and Singh's) opinions that defendants' conduct caused these damages.

. . Nevertheless, we conclude that the trial court's decision not to impose terminating sanctions in either the December 12, 2007 or the August 6, 2008 order was within its discretion. . Unlike in Doppes, in which the trial court heard the motions for terminating sanctions the day of and in the middle of trial, leaving the Doppes trial court with little time or few options to craft and impose effective nonmonetary sanctions other than terminating sanctions, the trial court in this case heard TestMasters' two pretrial motions for discovery sanctions one year and three months, respectively, before the trial.34 The discovery sanctions the trial court chose here allowed TestMasters to conduct forensic electronic discovery (at defendants' expense) to mitigate the effects of defendants' discovery conduct, and to obtain the benefit at trial of far more burdensome issue, evidence, and jury instruction sanctions than were possible in Doppes. The judgment against Teti for $10,000 in punitive damages is affirmed.


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