Judge: Armen Tamzarian, Case: BC682157, Date: 2022-12-13 Tentative Ruling

Case Number: BC682157    Hearing Date: December 13, 2022    Dept: 52

Tentative Ruling:   

Defendant/cross-complainant Starr Indemnity and Liability Company (Starr) moves for terminating and monetary sanctions against plaintiffs/cross-defendants Zoriall LLC, Anne Kihagi, and Christina Mwangi.

When a party fails to obey an order compelling further discovery responses or attendance at deposition, “the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction.”  (CCP § 2025.450(h) [depositions]; § 2030.300(e) [interrogatories]; § 2031.300(c) [requests for production]; § 2033.290(e) [requests for admission].) 

Plaintiffs have disobeyed three court orders compelling discovery.  First, they have not obeyed the court’s May 24, 2022 order compelling plaintiffs’ depositions and requiring them to produce the requested documents.  On November 16, 2022, Anne Kihagi failed to appear for her deposition.  (Supp. Mandegary Decl., ¶ 20, Ex. CC.)    In their opposition, plaintiffs state they offered for Kihagi to testify at deposition again, but defendant did not respond.  (Paredes Decl., ¶ 2, Ex. A.)  They did so, however, on November 17 after Kihagi failed to appear and after Starr filed this motion for sanctions.  And

Second, plaintiffs violated the court’s September 8, 2022 order to further respond to requests for admission (set four), form interrogatories (set four), special interrogatories (set two), and, supplemental interrogatories.  Plaintiffs have not served further responses as ordered.  (Mandegary Decl., ¶ 61.)

Third, plaintiffs violated the court’s September 12, 2022 order to further respond to supplemental requests for production.  Plaintiffs did not serve further responses as ordered.  (Mandegary Decl., ¶ 69.)     

Plaintiffs further violated the latter two orders because they have not paid the $11,320 in monetary sanctions the court imposed.  (Mandegary Decl., ¶¶ 70-71.)   

Appropriate Sanctions

Defendant/cross-complainant Starr moves for terminating sanctions both by dismissing plaintiffs’ first amended complaint with prejudice and striking their answer to Starr’s first amended cross-complaint and entering their defaults. 

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.)  Terminating sanctions are  “ ‘ordinarily a drastic measure which should be employed with caution.’ ”  (McArthur v. Bockman (1989) 208 Cal.App.3d 1076, 1080.)

Appropriate sanctions are those “such as are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks, but [not] which are 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.)

Sanctions short of termination have been ineffective to curb plaintiffs’ misuse of discovery.  The court has imposed monetary sanctions several times.  They have had no effect.  Not only have plaintiffs not complied with the orders by providing the required discovery, but also they have not paid the monetary sanctions. 

Lesser sanctions would be ineffective.  The court cannot fashion a feasible intermediate sanction, and neither side proposes one.  The two intermediate sanctions are issue sanctions and evidence sanctions.  (CCP §§ 2023.030(b)-(c).)  Neither will suffice.

An issue sanction is an order “that designated facts shall be taken as established” or prohibiting the sanctioned party “from supporting or opposing designated claims or defenses.”  (CCP § 2023.030(b).)  Plaintiffs have continually disobeyed an order compelling their depositions.  Defendants want to depose plaintiffs about all the issues in the case.  There are no specific facts the court can deem established or specific claims or defenses the court can prohibit that would accomplish Starr’s objects of discovery.  The only way to impose adequate issue sanctions would be to establish facts fatal to plaintiffs’ claims or prohibit them from supporting any of their claims or defenses—which would have the same effect as terminating sanctions. 

An evidence sanction is “an order prohibiting” a party “from introducing designated matters in evidence.”  (CCP § 2023.030(c).)  Such an order cannot accomplish the objects of Starr’s discovery because Starr seeks, in part, to discover evidence it can present to undermine plaintiffs’ case or support their own cross-complaint.  Prohibiting plaintiffs from introducing evidence supporting their affirmative claims or their defenses to the first amended cross-complaint cannot give Starr affirmative evidence to use against plaintiffs.

Plaintiffs’ refusal to comply with their discovery obligations has prejudiced Starr’s ability to defend itself and prepare for trial.  The court initially ordered plaintiffs to appear for their depositions on May 24, 2022.  The trial is now set for February 15, 2023, and plaintiffs have still not complied.  Deposing the plaintiffs is among the most crucial discovery a defendant needs to prepare for trial.  Plaintiffs have continually disobeyed the order requiring them to testify at deposition. 

The court, however, exercises its discretion to not impose the ultimate sanction of termination now.  The court will give plaintiffs one more chance to appear and testify at deposition.   

Disposition

Defendant Starr Indemnity and Liability Company’s motion for terminating and monetary sanctions is hereby continued to January 23, 2023, at 9:00 a.m. 

By December 15, 2022, defendant must offer plaintiffs a choice of two dates no later than January 13, 2023, for each deposition.  Plaintiffs must choose one of the two options given for each deposition.  If plaintiffs do not make their choices by December 20, 2022, defendant shall choose from among those dates.  If plaintiffs do not appear and testify at their depositions, the court will consider granting terminating sanctions against them.   

Plaintiffs shall file any further papers in opposition to defendant’s motion for terminating and monetary sanctions no later than January 14, 2023.  Defendant shall file any further papers in support of the motion no later than January 19, 2023.

On its own motion, the court hereby continues the hearing on plaintiffs’ counsel’s three motions to be relieved as counsel from January 5, 2023, to January 23, 2023, at 9:00 a.m.

On its own motion, the court hereby continues the hearing on defendant/cross-complainant Starr Indemnity and Liability Company’s motion to strike Zoriall LLC’s first amended complaint and Zoriall LLC’s answer to Starr’s first amended cross-complaint from December 15, 2022, to January 23, 2023, at 9:00 a.m.

On its own motion, the court hereby continues the hearing on defendant/cross-complainant Starr Indemnity and Liability Company’s motion to sever trial from December 15, 2022, to January 23, 2023, at 9:00 a.m.