Judge: Anne Richardson, Case: 22STCV37900, Date: 2023-09-15 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 22STCV37900    Hearing Date: February 7, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Pleadings

Plaintiff Gloria Franklin sues Defendant Spectrum Laboratory Products, Inc. (Spectrum Labs), Spectrum Chemical Manufacturing Corp. (Spectrum Chemical), and Does 1 through 25 pursuant to a December 5, 2022 Complaint alleging claims of (1) Discrimination based on Disability and/or Perceived Disability (Gov. Code §12940 (a)); (2) Failure to Reasonably Accommodate Disability (Gov. Code §12940 (m)); (3) Failure to Engage in Interactive Process (Gov. Code § 12940 (n)); (4) Discrimination based on Gender (Gov. Code §12940 (a)); (5) Hostile Work Environment Harassment (Gov. Code §12940 (a), (c)); (6) Retaliation in Violation of the Fair Employment and Housing Act (Gov. Code §§ 12940 (h) & (m)(2)); (7) Failure to Prevent Discrimination (Gov. Code § 12940 (k)); (8) Violations of the California Family Rights Act (CFRA); (9) Retaliation in Violation of Labor Code § 1102.5; (10) Wrongful Termination in Violation of Fundamental Public Policy; and (11) Failure to Timely Pay All Wages at Termination (Lab. Code §§ 201-203).

Motion Before the Court

On January 11, 2023, Plaintiff Franklin filed a motion for terminating sanctions or, in the alternative, issue and evidence sanctions. Plaintiff also requests monetary sanctions. The motions are premised on Defendant Spectrum Labs’ alleged failure to comply with this Court’s September 15, 2023 order.

On January 25, 2024, Defendant Spectrum Labs opposed Plaintiff’s motion.

On January 31, 2024, Plaintiff replied to Spectrum Labs’ opposition.

Plaintiff Franklin’s motion is now before the Court.

Motion for Sanctions

Legal Standard

Code of Civil Procedure section 2023.030 permits California courts to impose terminating, evidence, issue, and monetary sanctions for discovery misuses, which are defined by section 2023.010 of the Code of Civil Procedure. Misuses of the discovery process include, but are not limited to, the following:

(a) Persisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery.

(b) Using a discovery method in a manner that does not comply with its specified procedures.

(c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.

(d) Failing to respond or to submit to an authorized method of discovery.

(e) Making, without substantial justification, an unmeritorious objection to discovery.

(f) Making an evasive response to discovery.

(g) Disobeying a court order to provide discovery.

(h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery.

(i) Failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery, if the section governing a particular discovery motion requires the filing of a declaration stating facts showing that an attempt at informal resolution has been made.

(Code Civ. Proc., § 2023.010, subds. (a)-(i); see, e.g., Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545 [court imposed evidentiary sanctions when defendants misused discovery process by not responding to authorized method of discovery]; In re Marriage of Eustice (2015) 242 Cal.App.4th 1291, 1308-1309 [respondent was sanctioned for willfully violating order to produce accounting and financial documents].)

“The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.” (Padron v. Watchtower Bible & Tract Society of New York, Inc. (2017) 16 Cal.App.5th 1246, 1259-1260 (Padron).) 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.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793.) Moreover, “[d]iscovery 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.) An order imposing discovery sanctions is reviewed under the abuse of discretion standard. (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1422.) The court’s inherent power to curb abuses and promote fair process extends to the preclusion of evidence. (Peat, Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal.App.3d 272, 288.)

Order Granting Sanctions: DENIED without prejudice as to terminating, evidence, and issue sanctions; GRANTED as to monetary sanctions.

I. Terminating Sanctions

Terminating sanctions are drastic sanctions that should be imposed sparingly and only when it is clear that the party to be sanctioned has left no viable alternatives. (See Dept. of Forestry & Fire. Prot. v. Howell (2017) 18 Cal.App.5th 154, 191, disapproved on other grounds in Presbyterian Camp & Conf. Ctrs, Inc. v. Superior Court (2021) 12 Cal.5th 493; Lopez v. Watchtower Bible & Tract Soc’y (2016) 246 Cal.App.4th 566, 604.)

The court should consider the totality of the circumstances before ordering terminating sanctions, including (1) whether the conduct of the party was willful, (2) the detriment to the party propounding discovery, and (3) the number of formal and informal attempt to obtain the discovery. (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390.) The Court is not required to find that a party acted in bad faith before imposing terminating sanctions. (See Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 703.)

If terminating sanctions are warranted, the Court may make an order striking all or parts of the pleadings (Code Civ. Proc., § 2023.030, subd. (d)(1); Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992; Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1519 [trial court struck defendant’s answer]), an order dismissing all or part of a party’s action (Code Civ. Proc., § 2023.030, subd. (d)(3); Doppes v. Bentley Motors, Inc., supra, at p. 992; see, e.g., Crawford v. JPMorgan Chase Bank (2015) 242 Cal.App.4th 1265, 1271 [dismissal proper when party threatened to use pepper spray and taser on opposing counsel at deposition and was openly contemptuous of trial court]), and an order rendering a default judgment against a party (Code Civ. Proc., § 2023.030, subd. (d)(4); Doppes v. Bentley Motors, Inc., supra, at p. 992; see, e.g., Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th 1161, 1183-1184 [defendant’s pervasive and consistent misuse of discovery process supported court’s dismissal of answer and entry of default judgment]).

Here, the Court finds that terminating sanctions are not warranted.

Sanctions must be imposed in an incremental approach. (Padron, supra, 16 Cal.App.5th at pp. 1259-1260.) Here, the Court has only issued monetary sanctions in relation to the discovery at issue. (See 9/15/23 Minutes, pp. 10-11; Mot., Separate Statement, pp. 1-43 [Form Interrogatory 15.1 and Requests for Production Nos. 2, 14-17, 19-23, 25-26, 48, 52-61].) The Court has not imposed issue or evidence sanctions relating to that discovery. Moreover, the Court is not convinced that no viable alternatives exist. Indeed, Plaintiff Franklin’s motion requests issue and evidence sanctions. (See Mot., pp. 7-9.) Last, the Court notes that it can also impose further monetary sanctions on Defendant Spectrum Labs.

Accordingly, Plaintiff’s motion is DENIED as to terminating sanctions.

II. Evidence and/or Issue Sanctions

Next, the Court determines, without prejudice, that evidentiary and/or issue sanctions are not warranted. (The issue and evidentiary sanctions requested are virtually the same sanctions, where the evidentiary sanctions are merely stated as an order prohibiting the Defendant from presenting any evidence as to the various issues enumerated. (See Notice of Motion at pp. 1-3.) Thus, the Court will refer to them sometimes simply as issue sanctions below.)

“The trial court should consider both the conduct being sanctioned and its effect on the party seeking discovery and, in choosing a sanction, should attempt to tailor the sanction to the harm caused by the withheld discovery.” (Padron, supra, 16 Cal.App.5th at pp. 1259-1260, citations and quotations omitted.)

Here, the moving papers insufficiently elaborate on the connection between the relief requested (issue/evidentiary sanctions) and the discovery at issue (Form Interrogatory 15.1 and Requests for Production Nos. 2, 14-17, 19-23, 25-26, 48, 52-61). (See Mot., pp. 1-10; Mot., Separate Statement, pp. 1-43.)

Plaintiff’s separate statement functions more like a separate statement to compel a further discovery response than a separate statement supporting issue or evidentiary sanctions. Indeed, while the separate statement explains why it deems Spectrum Labs’ responses as deficient (Mot., Separate Statement, pp. 1-43), Plaintiff does not explain how each of the 11 issue/evidentiary sanctions relates to one or more of the defective discovery responses—most of which the Court agrees are deficient.

The Court notes that it finds no merit to the opposition argument that this motion is a motion for summary judgment of the Amended Answer in disguise. (Opp’n, pp. 14-15.) As Spectrum Labs knowingly recognizes, it has served supplemental responses to Interrogatory 15.1 vis-à-vis the 21st, 26th and 28th affirmative defenses and such responses limit themselves to responding that discovery is ongoing, and production will be made when discovered. (Opp’n, p. 14.) Yet, the Court is entitled to impose sanctions for just such conduct. (Cf. Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1105 [finding no merit to argument that no terminating sanctions should be imposed because discovery violations “did not prejudice [the propounding party’s] ability to go to trial” where “after numerous extensions of time and more than a year’s worth of delay, [the responding party] could still not provide an intelligible factual basis for their defenses and counterclaims”].)

Returning to the merits of this motion, the Court notes that the separate statement and points and authorities do not seem to indicate how the 11 requested issue sanctions relate to one or more of the discovery requests raised in the separate statement as a basis for this motion, e.g., no chart is provided to clarify how each of the 11 issue sanctions arises from specific discovery requests or groups of discovery requests. (Compare Mot., Notice, pp. 1-2, with Mot., pp. 1-10; Mot., Separate Statement, pp. 1-43.) Absent that information, the Court cannot determine that the requested issue sanctions are “tailor[ed] to the harm caused by the withheld discovery.” (Padron, supra, 16 Cal.App.5th at pp. 1259-1260.) By contrast, issue or evidentiary sanctions precluding Defendant from introducing any evidence to support its 21st, 26th or 28th affirmative defenses would seem to be related to the inadequate responses to the discovery asking about such evidence– except that Plaintiff did not request such relief, at least not until the Reply brief.

The Court also briefly notes that the moving papers unconvincingly cite several other discovery requests served by Plaintiff on Spectrum Labs as bases for issue sanctions. (See Mot., p. 4.) The Court agrees that a sanctioned party’s history as a repeat offender is not only relevant, but also significant, in deciding whether to impose sanctions pursuant to Code of Civil Procedure section 2023.030. (See, e.g., Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280 (Mileikowsky ) [“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 [terminating] sanction”; Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1618 (Collisson) [“Defendants chose to ignore the many attempts, both formal and informal, made by plaintiff to secure fair responses from them”]; Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 491 490 (Laguna Auto Body) [“We reiterate, however, in this case it was continued wilful violations of the discovery statutes embodied in the Code of Civil Procedure which prompted the court’s order dismissing the action”], disapproved on a different ground in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, fn. 4 (Garcia).)

However, those discovery requests have not been before the Court and no orders to compel have been issued, for which reason the Court is inclined to agree that issue, evidence, and terminating sanctions are not ripe as to that discovery. (See Opp’n, p. 17.) Indeed, if sanctions are to be granted in an incremental approach (Padron, supra, 16 Cal.App.5th at pp. 1259-1260), there is no sense in going from alleged discovery abuses to issue, evidence, or terminating sanctions without first addressing monetary sanctions or motions to compel as to these other discovery requests. Moreover, as with Form Interrogatory 15.1 and the Requests for Production, the moving papers do not sufficiently explain how the requested issue sanctions specifically arise from Spectrum Labs’ response(s) or non-response(s) to that other discovery.

Plaintiff’s motion is thus DENIED as to issue sanctions. The Court notes that this denial is without prejudice in that the conduct complained of in this motion may constitute part of a future request, if appropriate.

IV. Monetary Sanctions

The Court finds that ample grounds exist to impose monetary sanctions.

Spectrum Labs argues: “Here, the imposition of … further monetary sanctions would be a penal act against Spectrum and the Court should not permit Plaintiff to weaponize this Court’s past orders to avoid a trial on the merits. Spectrum has fully complied with this Court’s September 15 Order. It paid the monetary sanctions to Plaintiff and provided further responses to the Requests for Production and Form Interrogatories. Spectrum’s further responses to Form Interrogatories and Requests for Production are compliant and not sanctionable.” (Opp’n, p. 13.)

Yet, Spectrum Labs also concedes that it did not comply with this Court’s September 15, 2023 order by failing to produce discovery responses within the time specified in the Court’s order. (See Opp’n, pp. 4-11; Opp’n, Mirsch Decl., ¶¶ 2-21.)

Moreover, the Court finds that Spectrum Labs’ discovery responses and production have been insufficient. For example, as addressed in the moving papers and reply, here, Spectrum Labs has altogether failed to produce attorney work product documents, the privilege for which was waived through nonresponse to the initial discovery requested within the permissible response time. (See Mot., p. 9; Reply, p. 7; see also McKesson HBOC, Inc. v. Superior Court (2004) 115 Cal.App.3d 1229, 1239 [“Waiver of work product protection . . . is generally found under the same set of circumstances as waiver of the attorney-client privilege – by failing to assert the protection [etc.]”].) Moreover, the Court adopts its discussion in Section III above to explain why the responses relating to the 21st, 26th and 28th affirmative defenses are deficient. Last, the Court notes that, in light of the litigation history between the parties and the proceedings that have taken place before this Court, the Court finds little merit to the statements of compliance offered in Spectrum Labs’ supplemental responses. It is difficult to credit that after more than a year of litigation between the parties, Spectrum Labs has not been able to locate information that is responsive to the discovery requests cited in the separate statements, or cannot simply state that it has no such responsive documents. (The Court notes that it understands that this discovery was not served at the inception of this case. The Court merely points to the fact that this litigation is more than a year old and, even so, Spectrum Labs continues to allege that discovery and investigation continue and that Spectrum will supplement its responses, even as the trial date approaches.)

While family emergencies are a valid reason for leeway in litigation and the Court sympathizes with defense counsel’s father’s dire health condition (see Opp’n, pp. 5-6), such emergencies do not contravene or override the Court’s orders. Defense counsel could have filed an ex parte application asking for an extension to produce discovery per the Court’s September 15, 2023 order but did not do so, despite the fact that more than one attorney represents Spectrum Labs. Moreover, the family emergency was not communicated to Plaintiff’s counsel until September 29, 2023, four days past the 10-day cutoff to comply with the Court’s September 15, 2023 order. (Opp’n, Mirsch Decl., ¶ 4; 9/15/23 Minutes, pp. 10-11.)

Accordingly, the Court GRANTS monetary sanctions but in the reduced amount of amount of $4,515.30, consisting of 8 hours instead of 18 at the rate of $550 per hour for meeting and conferring, filing this motion, reviewing the opposition, filing a reply, and appearing at the hearing, and including the requested $61.65 and 53.65 in costs. The Court finds this reasonable as to fee rate, time expended, and costs. (Mot., Hosseini Decl., ¶¶ 36-41; see Excelsior Union High Sch. Dist. of L.A. Cnty. v. Lautrup (1969) 269 Cal.App.2d 434, 448 [The Court is considered “an expert in the matter of attorney fees” since “[t]he value of attorney’s services is a matter with which a judge must necessarily be familiar”; “[w]hen the court is informed of the extent and nature of such services, its own experience furnishes it with every element necessary to fix their value”].) 

Conclusion

Plaintiff Gloria Franklin’s Motion for Terminating Sanctions or, Alternatively, Evidentiary Sanctions, Issue Sanctions, and Monetary Sanctions in the Amount of $11,995.30 Against Defendant and Its Counsel is GRANTED in part and DENIED in part as follows:

(1) DENIED as to terminating, evidence, and issue sanctions, without prejudice; and

(2) GRANTED as to monetary sanctions in the amount of $4,515.30.

Defendant Spectrum Laboratories Products, Inc. and its counsel, Julie W. O’Dell and Drake A. Mirsch of Armstrong Teasdale LLP, are ORDERED to remit payment within 30 days of this order.