Judge: Audra Mori, Case: 19STCV05211, Date: 2023-01-20 Tentative Ruling

Case Number: 19STCV05211    Hearing Date: January 20, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background Facts

Plaintiffs Maria Carmen Almanza Cruz (“Cruz”) and Daniel Guillen (“Guillen”) filed this action against defendants Beverly Hills Physicians, Tsung-Lin Roger Tsai, M.D., and Maher Anous, M.D. for medical malpractice and loss of consortium.  Plaintiffs’ First Amended Complaint alleges that on August 13, 2018, Cruz consulted and engaged Defendants to be her medical surgeons for cosmetic surgery procedures, but Defendants negligently treated and caused injury to Cruz.  The loss of consortium claim was asserted by Guillen.  On April 29, 2021, Plaintiffs filed a request for dismissal dismissing Guillen’s loss of consortium claim. 

At this time, Defendant Tsung-Lin Roger Tsai, M.D. (“Tsai”) moves for terminating sanctions against Cruz based on Cruz’s failure to comply with the Court’s October 21, 2022 order (the “Order”).  The Order compelled Plaintiff to serve verified responses, without objections, to Tsai’s request for production of documents (“RPDs”), set four, within ten days, and ordered Plaintiff’s counsel to pay Defendant monetary sanctions in the amount of $460.00 within 20 days.  Cruz opposes the motion, and Tsai filed a reply.[1] 

Tsai asserts that Cruz complied with the portion of the Order requiring Cruz to serve verified responses, but Tsai argues that the responses remain deficient and are not Code-compliant.  Further, Tsai asserts that Cruz’s counsel did not comply with the portion of the Order requiring Cruz’s counsel pay sanctions of $460 to Tsai.  Tsai contends that Cruz has failed to comply with the Court’s orders on three occasions, and that this is the third motion for sanctions Tsai has filed as a result.  Tsai contends terminating sanctions are warranted for Cruz’s failure to prosecute the action.  Alternatively, Tsai argues that evidentiary sanctions should be imposed against Cruz prohibiting Cruz from introducing evidence of special damages at trial, or that additional monetary sanctions of $2,085 should be imposed against Cruz’s counsel for failing to comply with the Order. 

In opposition, Cruz contends that she has complied with the Order.  Cruz avers that she served full responses to the RPDs, and that Cruz’s counsel has now paid the monetary sanctions.  Cruz provides that her counsel inadvertently believed the monetary sanctions were previously paid, and that as of the filing of the opposition, Tsai has cashed the check sent to Tsai for the sanctions.  Cruz contends that if Tsai takes issue with Cruz’s responses to the RPDs, Tsai should meet and confer with Cruz and move to compel further responses.  Further, Cruz asserts that Tsai filed this motion without meeting and conferring about the underlying issues. 

In reply, Tsai argues that there is no meet and confer requirement prior to filing a motion for terminating sanctions; however, Tsai acknowledges that Cruz’s counsel has now paid the monetary sanctions imposed in the Order.  Tsai further asserts that monetary sanctions should be imposed against Cruz’s counsel for Tsai’s filing of this motion. 

2. Motion for Terminating Sanctions

Code of Civil Procedure § 2023.030 gives the court the discretion to impose sanctions against anyone engaging in a misuse of the discovery process.  A court may impose terminating sanctions by striking pleadings of the party engaged in misuse of discovery or entering default judgment.  (Code Civ. Proc., § 2023.030(d).)  “[T]the trial court has broad discretion in selecting the appropriate sanction, and we must uphold the trial court's determination absent an abuse of discretion.”  (Dept. of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 191, overturned on other grounds in Presbyterian Camp & Conference Centers, Inc. v. Superior Court (2021) 12 Cal.5th 493, 516 n. 17.) 

A violation of a discovery order is sufficient for the imposition of terminating sanctions.  (Collison & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1620.)  Terminating sanctions are appropriate when a party persists in disobeying the court's orders.  (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 795-796.) 

A terminating sanction is a "drastic measure which should be employed with caution."  (Deyo, 84 Cal.App.3d at 793.)  "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."  (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.)  While the court has discretion to impose terminating sanctions, these 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, 84 Cal.App.3d at 793.)  "[A] court is empowered to apply the ultimate sanction against a litigant who persists in the outright refusal to comply with his discovery obligations."  (Ibid.)  Discovery sanctions are not to be imposed for punishment, but instead are used to encourage fair disclosure of discovery to prevent unfairness resulting for the lack of information.  (See Midwife v. Bernal (1988) 203 Cal.App.3d 57, 64 [superseded on other grounds as stated in Kohan v. Cohan (1991) 229 Cal.App.3d 967, 971].)

Here, Tsai does not dispute that Cruz served responses to the RPDs as compelled in the Order.  Given that Cruz served verified responses, terminating sanctions dismissing Cruz’s complaint are unduly harsh and unwarranted at this time.  (Deyo, 84 Cal.App.3d at 793; Dept. of Forestry & Fire Protection, 18 Cal.App.5th at 191 (“terminating sanctions are to be used sparingly because of the drastic effect of their application.”].)  “[S]anctions are generally imposed in an incremental approach, with terminating sanctions being the last resort.”  (Dept. of Forestry & Fire Protection, 18 Cal.App.5th at 191 [But recognizing that terminating sanctions can be imposed as a first measure when record shows lesser sanctions would be ineffective].)  To the extent that Tsai contends the responses provided were deficient, Tsai does not through the instant motion sufficiently establish that Cruz’s responses are so deficient on their face as to warrant terminating sanctions or evidentiary sanctions prohibiting Cruz from introducing any evidence of her special damages at trial.  Rather, Tsai should meet and confer with Cruz regarding the responses, move to compel further responses, and schedule an Informal Discovery Conference concerning the issues, if necessary.  If further responses are compelled and Cruz then fails to comply with an order compelling such, Tsai can move for appropriate sanctions at that time.  (See e.g., CCP § 2031.310(i).)[2]  

As to Tsai’s contention that Cruz’s counsel failed to pay the monetary sanctions imposed in the October 21, 2022 Order, Tsai admits in the reply that the sanctions have now been paid.  Moreover, regardless of whether the monetary sanctions have now been paid, there is no authority, and Tsai cites none, for imposition of terminating sanctions against Cruz for Cruz’s counsel’s for failure to pay sanctions.  (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615 [holding, “a terminating sanction issued solely because of a failure to pay a monetary discovery sanction is never justified.”].)  The remedy to enforce payment of monetary sanctions is to obtain and levy a writ of execution on assets of the debtor, not to move for terminating sanctions, especially where sanctions were imposed against a party’s attorney only.  (Id.) 

Based on the foregoing, Tsai’s motion for terminating, or alternatively, evidentiary, sanctions against Cruz is denied. 

Because the motion is being denied, Tsai’s request for additional monetary sanctions is denied.  Further, while there is no meet and confer requirement prior to filing a motion for terminating sanctions, the Court notes that the issue concerning the payment of the monetary sanctions imposed in the Order might have been resolved by meeting and conferring and cooperation between Cruz’s and Tsai’s counsel.  Indeed, Cruz’s counsel attests that once he received the instant motion, he promptly paid the sanctions and apologized for his oversight.  (Opp. Hunt Decl. ¶ 4.) 

Moving Defendant Tsai is ordered to give notice.  

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 20^th day of January 2023