Judge: Anne Hwang, Case: 22STCV39846, Date: 2023-11-09 Tentative Ruling

Case Number: 22STCV39846    Hearing Date: November 9, 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

BACKGROUND

Progressive Insurance Company (“Petitioner”) filed the instant petition for a case number in connection with an Uninsured Motorist proceeding pursuant to Insurance Code section 11580.2 involving Respondent Antasha Carter (“Respondent”).

Petitioner moves for terminating sanctions against Respondent dismissing Respondent’s arbitration proceeding because of her misuse of the discovery process. Petitioner asserts she has failed to comply with the Court’s July 6, 2023 order compelling initial responses to discovery.   

LEGAL STANDARD

“[T]he uninsured motorist law grants the superior court the exclusive jurisdiction to hear discovery matters arising under uninsured motorist arbitrations. Invested with the exclusive power to rule, and because the uninsured motorist statute makes available ‘all rights, remedies, obligations, liabilities and procedures set forth in [the Civil Discovery Act]’ (§ 11580.2, subd. (f)), the court necessarily ha[s] the power to dismiss the case as a terminating sanction.”  (Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913, 926 [trial court did not abuse discretion in dismissing insured’s underinsured motorist arbitration as terminating sanction for insured’s refusal to obey prior discovery order].)   

If a person is engaging in misuse of the discovery process, the Court may issue a terminating sanction by one of the following orders:

“(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).)

“Misuse of the discovery process” includes: “(d) Failing to respond or to submit to an authorized method of discovery . . . (g) Disobeying a court order to provide discovery.” (Code Civ. Proc. § 2023.010.) 

“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

Petitioner first served Special Interrogatories, Set One and Demand for Production of Documents, Set One on Respondent, on July 15, 2022. (Calendo Decl. ¶ 3.) An extension to respond until September 5, 2022, was granted. (Id. ¶ 4.) On September 7, 2022, Petitioner learned that Respondent was no longer represented by her then-counsel. Petitioner began sending correspondence to Respondent, who remained unrepresented, to respond to discovery. On November 17, 2022, Petitioner received an email from Respondent stating that she intended to respond to the discovery requests. Respondent was informed that if she served complete and verified responses prior to a hearing on a motion to compel, the motion would be taken off-calendar. (Id. ¶ 9, Exh. G.) The motions to compel were filed on December 30, 2022. On March 2, 2023, Petitioner received notice that attorney David Esfeh was retained to represent Respondent. (Id. ¶ 13, Exh. K.) Petitioner granted another discovery extension until May 12, 2023. (Id. ¶ 15.) On July 6, 2023, the Court granted the motion to compel Special Interrogatories and Demand for Production and ordered Respondent to pay $923.30 in sanctions, within 30 days. Respondent did not appear at the hearing. On July 11, 2023, Petitioner received notice that Respondent was no longer represented by David Esfeh. (Id. ¶ 18.)  As of the filing of this motion, Respondent has not complied with the order. (Id. ¶ 8.)

Petitioner, however, does not present additional evidence that Respondent’s actions are willful, other than the fact responses have not been served. For example, in Miranda, there was evidence that the plaintiff “announced, through counsel, she would not sign the authorizations. Thus, the evidence established that plaintiff flatly refused to obey a court order.” (Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913, 929.) Unlike in Miranda, here, there is no evidence that the failure to respond was willful. The correspondence with Respondent herself was that she intended to respond to discovery requests. She was then represented by counsel. No further statements by Respondent are referenced in counsel’s declaration.

As a result, the Court finds that terminating sanctions at this time is excessive.

CONCLUSION AND ORDER

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

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