Judge Armen Tamzarian, Case 21STCV07947 2023-05-16 Tentative Ruling

Judge: Armen Tamzarian, Case: 21STCV07947, Date: 2023-05-16 Tentative Ruling

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Case Number: 21STCV07947 Hearing Date: May 16, 2023 Dept: 52

Defendant BNSF Railway Company’s Three Motions for Terminating Sanctions

Defendant BNSF Railway Company moves for terminating sanctions against plaintiff Wayne Olson for violating three court orders compelling further discovery responses.

If a party disobeys an order compelling further responses to interrogatories or requests for production, the court may impose “an issue sanction, an evidence sanction, or a terminating sanction” and “a monetary sanction.” (CCP § 2030.300(e) [interrogatories]; § 2031.310(i) [requests for production].)

Meet and Confer

Plaintiff argues defendant did not adequately meet and confer before filing these motions. The record shows otherwise. On March 3, 2023, defendant sent plaintiff’s counsel a detailed meet and confer letter. (Mounedji Decl., ¶ 7, Ex. C.) Plaintiff’s counsel replied he was “happy to discuss over the phone your concerns in your letter. Please let me know if you are available on Friday for a conference.” (Id., Ex. D, p. 1.) Defense counsel responded, “I am not sure that there is much left to discuss… That being said, I am willing and able to talk this Friday. … Please let me know what times work for you, and we will arrange for a conference line on our end.” (Ibid.) Defendant’s counsel states he “never received any further communications from plaintiff’s counsel” in response. (Mounedji Decl., ¶ 8.)

Plaintiff does not rebut defendant’s showing. Plaintiff’s counsel makes a conclusory statement: “Plaintiff attempted contacted Defendant to confer about the Requests. However, Defendant refused to confer prior to filing terminating sanctions motion. And again, after Defendant filed their motion Plaintiff contacted Defendant to confer. However, Defendant stated that they do not feel like conferral is appropriate.” (Courtney Decl., ¶ 8.) Plaintiff’s counsel does not state he replied to defendant’s March 8 email about scheduling the phone call. He does not attach any written response as an exhibit. Plaintiff therefore was responsible for the breakdown in the meet and confer process.

Disobedience of Court Orders

Plaintiff disobeyed three court orders compelling further responses to (1) form interrogatories, (2) special interrogatories, and (3) requests for production. On January 13, 2023, the court overruled plaintiff’s objections to the disputed discovery requests and ordered plaintiff to serve further verified responses without objections to numerous specified form interrogatories, special interrogatories, and requests for production.

Plaintiff served supplemental responses that did not comply with the court’s orders. He again gave evasive or incomplete responses. For example, form interrogatory No. 17.1 asks specific questions about the grounds for denying requests for admissions. Initially, plaintiff responded, “Discovery and investigation continue. Plaintiff will supplement this response.” His supplemental response states only, “Plaintiff will supplement.” Special interrogatories Nos. 6 and 9 asked plaintiff to identify all people with knowledge of facts supporting specified contentions plaintiff made. Plaintiff’s supplemental responses again say only, “Plaintiff will supplement this request.” These are the same evasive and incomplete answers as before.

Plaintiff also gave other evasive and incomplete answers to numerous other interrogatories. Form interrogatory No. 9.1, for example, asks specific questions about damages attributed to the incident. Plaintiff responded, “Plaintiff refers Defendants to his live complaint, and his medical and billing records produced in this case.” That does not answer the specific questions defendant asked.

Similarly, various special interrogatories (including Nos. 1-8) ask plaintiff to state all facts supporting certain contentions and to identify supporting documents and any people with knowledge of those facts. Plaintiff’s supplemental responses state variations of: “Plaintiff refers Defendants to his live complaint, the documents exchanged, and Plaintiff’s expert reports” or “his medical and billing records produced in this case.” Some of the responses further state, “Plaintiff will supplement in accordance with the Court’s scheduling order and the Rules of Procedure.” Again, these vague responses do not answer the questions asked. They also repeat the improper response that plaintiff will answer later.

Plaintiff’s supplemental responses to the requests for production are also insufficient. To various requests for production, plaintiff gave similar responses as those for his interrogatories, such as “Plaintiff refers Defendant to his live complaint, the documents exchanged, and Plaintiff’s expert report.” That is not a valid statement of compliance under Code of Civil Procedure section 2031.220. Other responses again state plaintiff “reserves the right to supplement.” To other requests (including Nos. 16-20), plaintiff responded, “Plaintiff does not have any responsive material in his possession at this time.” That is not a valid statement of inability to comply under Code of Civil Procedure section 2031.230, which requires plaintiff to “affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand,” to explain why he cannot comply, and to identify anyone believed to possess responsive items.

Plaintiff therefore disobeyed three court orders.

On May 3, 2023, the day plaintiff opposed these motions, he also served third supplemental responses. (Courtney Decl., Ex. 3.) Though plaintiff’s counsel states these responses were served on February 10 (Courtney Decl., ¶ 7), the proof of service attached to the third supplemental responses states they were served on May 3 (id., Ex. 3). Many of these belated responses again include the improper statement that “Plaintiff reserves the right to supplement” if information, documents, or witnesses are found. (E.g., special interrogatories Nos. 2-18.)

Appropriate Sanctions

Discovery sanctions should be imposed incrementally, “starting with monetary sanctions and ending with the ultimate sanction of termination.” (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.) “[A] terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective.” (Ibid.) Appropriate sanctions are those “suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks” instead of sanctions “designed not to accomplish the objects of discovery but to impose punishment.” (Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 488.)

Terminating plaintiff’s action would be too extreme. Though plaintiff disobeyed court orders and has caused substantial delay, this case currently has no trial date. Defendant can still achieve the objects of its discovery. Defendant has not shown that less severe sanctions would be ineffective. Defendant did not move for the intermediate options of evidence or issue sanctions. The court therefore finds monetary sanctions are warranted. Defendant reasonably incurred $2,240 in expenses on each of its three motions.

Disposition

Defendant BNSF Railway Company’s motion for terminating sanctions for failure to comply with the court’s order compelling further responses to form interrogatories is granted in part. Susan L. Olson, the personal representative of plaintiff Wayne Olson’s estate, and plaintiff’s counsel Arnold & Itkin, LLP are ordered to pay defendant BNSF Railway Company $2,240 in sanctions within 20 days. Susan L. Olson and counsel Arnold & Itkin, LLP shall be jointly and severally liable for the sanctions.

Defendant BNSF Railway Company’s motion for terminating sanctions for failure to comply with the court’s order compelling further responses to special interrogatories is granted in part. Plaintiff Wayne Olson’s personal representative Susan L. Olson and plaintiff’s counsel Arnold & Itkin, LLP are ordered to pay defendant BNSF Railway Company $2,240 in sanctions within 20 days. Susan L. Olson and counsel Arnold & Itkin, LLP shall be jointly and severally liable for the sanctions.

Defendant BNSF Railway Company’s motion for terminating sanctions for failure to comply with the court’s order compelling further responses to requests for production is granted in part. Plaintiff Wayne Olson’s personal representative Susan L. Olson and plaintiff’s counsel Arnold & Itkin, LLP are ordered to pay defendant BNSF Railway Company $2,240 in sanctions within 20 days. Susan L. Olson and counsel Arnold & Itkin, LLP shall be jointly and severally liable for the sanctions.