Judge Anne Hwang, Case Number: 19STCV05029, Date: 2023-10-03 Tentative Ruling

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

On February 14, 2019, Plaintiff Katherine A. Walls (“Plaintiff”) filed a complaint against Defendants Patterson Dental Supply, Inc., Brian James Decker (collectively “Defendants”), and several others for negligence arising out of a motor vehicle accident.

Defendants assert that Plaintiff has not complied with six Court orders to compel:

1. October 7, 2022 – Compelling Responses to Patterons’ Supplemental Interrogatories, Set One, and Supplemental Requests for Production, Set One;

2. May 22, 2023 – Compelling Responses to Patterson’s Special Interrogatories, Set Two, Decker’s Supplemental Interrogatories, Set One, Decker’s Supplemental Requests for Production, Set One, and Decker’s Special Interrogatories, Set Two.

In each Minute Order, Plaintiff was required to serve verified responses, without objection within 30 days of notice of the Court’s order and pay monetary sanctions.

(1) An order finding Plaintiff and Plaintiff’s counsel in contempt for failing to comply with the above orders,

1. Plaintiff is prohibited from making any claims relating to past and/or future loss of income or loss of earning capacity, and

2. Plaintiff is prohibited from making any claims for injuries and damages relating to treatment for injuries after her August 20, 2021 car accident, including but not limited to her lumbar surgery of September 27, 2022 and her cervical spine surgery of November 11, 2022.

And (3) the following Evidentiary Sanctions, precluding Plaintiff from offering any evidence, argument, or examination of the following:

1. Evidence related to Plaintiff's alleged past and future loss of income and loss of earning capacity claims.

2. Evidence related to Plaintiff's employment from 2021 through the time of trial.

3. Evidence related to Plaintiff's contention that her August 20, 2021 accident exacerbated injuries from accident of February 16, 2017.

4. Evidence related to Plaintiff's alleged physical injuries sustained as a result of the August 20, 2021 accident.

5. Evidence related to treatment of Plaintiff's Lumbar Spine after August 20, 2021.

7. Evidence related to treatment of Plaintiff's Cervical Spine after August 20, 2021.

8. Evidence related to treatment of Plaintiff’s Thoracic Spine after August 20, 2021.

In the alternative, Defendants seek terminating sanctions and monetary sanctions for $7.595.00. Plaintiff opposes and Defendants reply.

“To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose…sanctions against anyone engaging in conduct that is a misuse of the discovery process.” (Code Civ. Proc. section 2023.030.) Failing to respond or to submit to an authorized method of discovery constitutes a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (d).) “The court may impose an issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process.” (Code Civ. Pro. section 2023.030, subd. (b).)

“Discovery sanctions must be tailored in order to remedy the offending party's discovery abuse, should not give the aggrieved party more than what it is entitled to, and should not be used to punish the offending party.” (Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1217.)¿ “Although the court has discretion in choosing a sanction, this discretion must be exercised in a manner consistent with the basic purposes of such sanctions, e.g., to compel disclosure of discoverable information.”¿ (Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1193 (citation omitted).)¿ “Furthermore, the sanction chosen should not provide a windfall to the other party, by putting the prevailing party in a better position than if he or she had obtained the discovery sought and it had been favorable.”¿ (Ibid. (citations omitted).)¿

A motion for issue or evidentiary sanctions must be accompanied by a separate statement. (Cal. Rules of Court, Rule 3.1345(a)(7).) “A separate statement is a separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue. The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response. Material must not be incorporated into the separate statement by reference.” (Cal. Rules of Court, Rule 3.1345(c).)¿

As a preliminary matter, the Court notes that Plaintiff’s opposition was filed late on September 25, 2023 when it was due on September 19, 2023. Nevertheless, because Defendants were able to file a reply addressing the merits of the opposition, the Court exercises its discretion to consider the opposition.[1] Plaintiffs are put on notice that failure to timely file papers in the future may result in them being disregarded.

Plaintiff argues that procedurally, Defendants cannot move to hold them in contempt without filing an affidavit and request for an order to show cause. (Opp. at pg. 3.)

The procedures for contempt are quasi-criminal, and the burden of proof is significant. The contempt proceeding is typically initiated by a charging affidavit, which frames issues that will be tried and seeks an Order to Show Cause re: Contempt from the court. (Code Civ. Proc. § 1211 [“an affidavit shall be presented to the court or judge of the facts constituting the contempt”]; Cedars-Sinai Imaging Medical Group v. Superior Court (2000) 83 Cal.App.4th 1281, 1283). If the procedures are not followed, the trial court acts without jurisdiction (Cedars-Sinai, 83 Cal.App.4th at 1287 (“it is plain that the trial court acted without jurisdiction. It did not issue or sign an order to show cause re contempt. As a result, no order to show cause was served on the Group (personally or otherwise. And although a copy of the charging affidavit was at some point before the January 26, 2000, hearing served on the Group’s lawyer, the Group was not personally served with the affidavit or with any of the papers relevant to the contempt.”) “Although a contempt may arise, as here, in the context of a civil action, a contempt proceeding is punitive and separate from the cause out of which it arises [citation] and it is for this reason that every "i" must be dotted and every "t" crossed.” (Id. at 1286.]

Defendants appear to suggest that the reference to “contempt” in Code of Civil Procedure section 2023.030(e) is either a different procedure from contempt in section 1209, or that Defendants complied with the requirements of a contempt proceeding. Defendants do not cite any authority for these arguments. (Reply at pgs. 3-5.) The Court finds that Defendants have not complied with the procedural requirements for a contempt proceeding, and in light of Defendants’ position that they did not intend to initiate a separate contempt proceeding (Reply at pg. 5), the Court denies the motion for contempt.

On October 7, 2022 and May 22, 2023, the Court granted Defendants’ motions to compel discovery responses and ordered Plaintiff to serve verified responses within a specified time period. According to Defendants, Plaintiff did serve responses, but Defendants found the responses to be late and deficient. In addition, monetary sanctions were not paid. (Motion at pgs. 1-2.)

However, instead of filing motions to compel further responses, Defendants have brought this motion for issue, evidentiary, and terminating sanctions. As an initial matter, the failure to pay sanctions is not a basis for such relief. (See Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615, [holding, “a terminating sanction issued solely because of a failure to pay a monetary discovery sanction is never justified.”].) Sanctions orders are enforceable as money judgments unless the court orders otherwise. Thus, the remedy to enforce payment of monetary sanctions is to obtain and levy a writ of execution on assets of the debtor. (Id. at 615.)

To the extent that Defendants seek issue, evidentiary, and terminating sanctions on the basis that the responses are deficient, the proper procedure would have been for Defendants to file a motion to compel further responses. Defendants’ current motion assumes that the responses are deficient, and then asks the Court to find that the responses are therefore in violation of the Court’s orders, warranting sanctions. However, the threshold question of whether the responses are deficient has not been properly presented to the Court.

Finally, regarding the tardiness of the discovery responses, “[g]enerally, ‘[a] decision to order terminating sanctions should not be made lightly. 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.’” (Los Defensores, supra, 223 Cal. App. 4th at p. 390 [citation omitted].) The Court finds that because the responses were provided, issue, evidentiary, and terminating sanctions would be extreme and unjustified.

Defendants also assert that Plaintiff has not provided any responses to Decker’s Supplemental Interrogatories, Set One. (Berne Decl. ¶ 31.) According to the Separate Statement, Supplemental Interrogatory No. 1 to Plaintiff asked: “"Pursuant to C.C.P. Section 2030.270(a) Defendant, Brian James Decker, requests that Plaintiff supplement her prior responses to Defendant's Form Interrogatories and Special Interrogatories and provide any "later acquired information" that has any bearing on those prior responses." (Separate Statement, 18.) Plaintiff does not dispute that responses have not been served. Moreover, Plaintiff has not responded with regard to this discovery abuse. Accordingly, the Court finds that monetary sanctions are warranted and orders Plaintiff and Plaintiff’s counsel of record to pay $1000 to counsel for Defendant.

Plaintiff, in her “objection,” requests the Court grant sanctions against Defendants and their counsel under Code of Civil Procedure section 2023.010. However, Plaintiff has not separately moved for sanctions and so this request is denied.

Accordingly, Defendants’ motion for Contempt, Issue, Evidence Sanctions, or in the alternative, Terminating and Monetary Sanctions is DENIED in part. Plaintiff shall serve responses to Decker’s Supplemental Interrogatories, Set One, within 15 days.

Plaintiff and Plaintiff’s counsel, jointly and severally, are order to pay $1000 to counsel for Defendant within 10 days.

Defendants shall provide notice of the Court’s orders and file a proof of service of such.

[1] Defendants request more time to respond to the late filing. (Reply at pg. 5.) Defendants may present argument at the hearing, or if necessary, may present additional arguments in writing.

DEPT:	32
HEARING DATE:	October 3, 2023
CASE NUMBER:	19STCV05029
MOTIONS:	Motion for Orders of Contempt, Issue, Evidence, or in the alternative, Terminating and Monetary Sanctions against Plaintiff
MOVING PARTY:	Defendants Patterson Dental Supply, Inc. and Brian James Decker
OPPOSING PARTY:	Plaintiff Katherine A. Walls