Judge: Anne Hwang, Case: 20STCV14882, Date: 2023-12-14 Tentative Ruling

Case Number: 20STCV14882    Hearing Date: April 12, 2024    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

BACKGROUND

Defendant Duc Hoang Duong, M.D. (Defendant) moves for terminating sanctions against Plaintiff Miguel de la Rosa (Plaintiff) for failure to comply with the Court’s December 14, 2023 and December 15, 2023 discovery orders. Defendant also moves for monetary sanctions. Plaintiff opposes and Defendant replies.

LEGAL STANDARD

“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.) The court may impose a terminating sanction for misuse of the discovery process by any of the following: “(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.” (Code Civ. Proc. § 2023.030(d).)  Failing to respond or to submit to an authorized method of discovery, or disobeying a court order to provide discovery, constitutes a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (d), (g).)

“The trial court may order a terminating sanction for discovery abuse ‘after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.’” (Los Defensores, Inc. v. Gomez (2014) 223 Cal. App. 4th 377, 390, quoting Lang v. Hochman (2000) 77 Cal. App. 4th 1225, 1246.)  

“Generally, ‘[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].)   

“Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders.” (Los Defensores, supra, 223 Cal.App.4th at p. 390 citing Lang, supra, 77 Cal.App.4th at pp. 1244-1246 [discussing cases]; see, e.g., Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617-1622 [terminating sanctions imposed (by striking the defendant’s Answer and subsequently granting default judgment) after defendants failed to comply with one court order to produce discovery]; Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 491, disapproved on other grounds in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, n. 4 [terminating sanctions imposed against the plaintiff for failing to comply with a discovery order and for violating various discovery statutes].) 

DISCUSSION

Defendant served discovery on Plaintiff on April 13, 2023. (Ashtari Decl. ¶ 2.) On December 14, 2023 and December 15, 2023, the Court granted Defendant’s unopposed motions to compel. Plaintiff was ordered to provide verified responses, without objections, to Form Interrogatories, Special Interrogatories, and Request for Production of Documents, Set One within 30 days. (See Min. Order, 12/14/23, 12/15/23.) Defendant served notice of the orders electronically to Plaintiff’s counsel on December 18, 2023.

On March 18, 2024, Defendant filed the instant motion asserting that he had not received responses.

Plaintiff’s opposition asserts that the failure to serve discovery responses was not willful and that Defendant’s notice of the orders were unknowingly directed to a spam folder. (Opp., 6.; Circcarelli Decl. ¶¶ 12–13.) While Plaintiff’s counsel concedes counsel should have investigated the outcome of the motions to compel, but states that the motions “fell completely off my radar” due to the holiday season. (Circcarelli Decl. ¶ 14.)  Plaintiff also asserts that counsel has provided verified responses, without objections, to Defendant’s discovery, upon learning of the Court’s order through this motion. (Id. ¶ 12, 16, Exh. A.)

In reply, Defendant concedes that Plaintiff has served verified responses. (Reply, 2.) Therefore, terminating sanctions are not appropriate at this stage.

However, Plaintiff offers no explanation for why discovery responses were not served, knowing that motions to compel were on the Court’s calendar and, more significantly, knowing that discovery was still outstanding. Although Plaintiff’s counsel offers the excuse of the holiday season for not following up regarding the outcome of the motions, counsel does not explain why discovery responses were not served. Accordingly, monetary sanctions are appropriate. However, the amount requested is excessive given the type of motion. The Court awards sanctions in the amount of $412.50 (1.5 hours of attorney time plus the filing fee).

CONCLUSION

Therefore, Defendant’s motion for terminating sanctions is DENIED.

Plaintiff and Plaintiff’s counsel, jointly and severally, shall pay monetary sanctions in the amount of $412.50 to counsel for Defendant.

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.