Judge: Anne Hwang, Case: 19STCV29749, Date: 2023-08-16 Tentative Ruling

Case Number: 19STCV29749    Hearing Date: August 16, 2023    Dept: 32

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. 

TENTATIVE RULING  

MOTION 

Plaintiff Lon Wahlberg (“Plaintiff”) requests an order for terminating sanctions by striking the answer of Defendant Beven & Brock Property Management Company, Inc. (“Defendant”), or in the alternative additional monetary sanctions, due to its failure to comply with the Court’s previous orders of August 16, 2022 and August 17, 2022 to provide verified responses to Form Interrogatories, Special Interrogatories, and Inspection Demands.

Plaintiff requests Defendant pay $2,741.65 as the reasonable costs and attorneys fees incurred by Plaintiff for these proceedings, and that the Court order additional monetary sanctions of $1,500.00. 

Defendant filed an opposition, and Plaintiff replied.

ANALYSIS 

 The court has discretion to impose terminating sanction when a party willfully disobeys a discovery order.  (Code Civ. Proc., §§ 2023.010, subd. (g), 2030.290, subd. (c).)  The court may impose a terminating sanction by striking a party’s pleading or dismissing the action of the party.  (Code Civ. Proc., § 2023.030, subds. (d)(1) & (d)(3).)   

California discovery law authorizes a range of penalties for a party's refusal to obey a discovery order, including monetary sanctions, evidentiary sanctions, issue sanctions, and terminating sanctions.  A court has broad discretion in selecting the appropriate penalty, . . . . Despite this broad discretion, the courts have long recognized that the terminating sanction is a drastic penalty and should be used sparingly.  A trial court must be cautious when imposing a terminating sanction because the sanction eliminates a party's fundamental right to a trial, thus implicating due process rights.  The trial court should select a sanction that is tailored to the harm caused by the withheld discovery.  Sanctions should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery. 

(Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604 [cleaned up].)  Equally important, “a terminating sanction issued solely because of a failure to pay a monetary discovery sanction is never justified.”  (Newland v. Superior Court¿(1995) 40 Cal.App.4th 608, 615.) 

Here, on August 16, 2022, the Court ordered Defendant to serve verified responses to FROG and SROG, without objection, and pay monetary sanctions in the amount of $810 to Plaintiff within 30 days’ notice of the Court’s orders. (Minute Order 08/16/2022.)  Also, on August 17, 2022, the Court ordered Defendant to serve verified responses to RPD, without objection, and pay monetary sanctions in the amount of $560 within 30 days’ notice of the Court’s orders. (Minute Order 08/17/2022.) 

As of the filing date of this motion on July 25, 2023, Defendant had not provided discovery responses to Plaintiff’s FROG, SROG, and RPD, as ordered by the Court.  (Declaration of Bo Champon, ¶ 9.)  However, the parties agree that on August 1, 2023, Defendant served its verified discovery responses on Plaintiff.  (Declaration of Jack Fierstadt, ¶ 11.)  As Defendant has now complied with the Court orders of August 16, 2023 and August 17, 2023, the request for terminating sanctions is DENIED. 

Notwithstanding, monetary sanctions may be imposed under CCP section 2023.030(a)  because Plaintiff incurred attorney’s fees and costs to file the instant motion.  Plaintiff requests monetary sanctions in the amount of $2,741.65 based on the filing fee of $61.65 and eight hours of work at the hourly rate of $335 (six hours to draft, prepare and serve the notice of motion, points and authorities, declaration, exhibits, and proposed order; and two hours to prepare the reply papers, appear at the hearing, and to draft, serve, and filed any orders or notices)  (Champon Decl., ¶ 10.)

Defendant argues that monetary sanctions are not appropriate because counsel was his wife’s full-time caregiver during some period of time and his client’s server had crashed, making documents in the relevant time period irretrievable.  (Fierstadt Decl. ¶ 7.)

The Court finds that monetary sanctions are warranted, but the amount requested by Plaintiff is excessive.  Counsel for Defendant acknowledges that he had known and confirmed with Plaintiff’s counsel since January 27, 2023 that discovery responses were due.  While he attempts to explain the absence of documents due to a server crash, that does not explain the failure to respond to interrogatories.  The rest of counsel’s declaration appears to fault Plaintiff’s counsel for not reminding him further of the need for discovery responses.  Plaintiff’s counsel declares that a meet and confer letter was sent on July 10, 2023 prior to the filing of the motion. (Champon Decl. ¶ 8.)

As such, the Court grants Plaintiff’s request for monetary sanctions in the amount of $731.65 (two hours of attorney time plus the filing fee.)

Plaintiff’s request for monetary sanctions of $1,500 pursuant to CCP section 177.5 is DENIED because the sanctions pursuant to CCP section 2023.030(a) is a reasonable amount of sanctions to be imposed against Defendant for its conduct. 

CONCLUSION AND ORDER 

Plaintiff’s Motion for Terminating Sanctions is DENIED. 

Plaintiff’s Motion for Monetary Sanctions pursuant to CCP 177.5 is DENIED. 

Plaintiff’s Motion for Monetary Sanctions pursuant to 2023.030(a) is GRANTED.  Defendant and counsel jointly and severally are ordered to pay sanctions of $731.65 to Plaintiff, by and through counsel for Plaintiff, within 30 days’ notice of the Court’s orders.

Plaintiff is ordered to give notice of this ruling and file a proof of service of such.