Judge Audra Mori, Case 21STCV35196 2023-02-08 Tentative Ruling

Plaintiff Juliet Ansumana (“Plaintiff”) filed this action against Defendant Rochelle Sterling (“Defendant”), as Trustee of the Sterling Family Trust and dba Beverly Hills Properties, for injuries Plaintiff allegedly sustained as a result of an incident that occurred in Defendant’s elevator located at 120 South Reno Street in Los Angeles, California, on December 17, 2019.

At this time, Defendant moves for an order imposing issue and evidentiary sanctions against Plaintiff for Plaintiff’s violation of the Court’s November 2, 2022 compelling Plaintiff to serve full and complete responses to Defendant’s special interrogatories, set two, and request for production of documents, set three. Defendant seeks an order prohibiting Plaintiff from introducing evidence or testimony claiming that her damages in this matter stem from anything other than Plaintiff’s prior car accident that occurred in October 2018. Alternatively, Defendant seeks an order again requiring Plaintiff to serve full responses to the subject special interrogatories and request for production of documents, and an order imposing monetary sanctions against Plaintiff and Plaintiff’s counsel.

On January 17, 2023, Plaintiff filed a late opposition, only two court days before this hearing. Plaintiff’s counsel submits a declaration stating that Plaintiff’s counsel left to travel to Nigeria on November 15, 2022, to visit his family, and that his laptop failed during his trip. Plaintiff’s counsel states that he did not review Defendant’s motion until January 9, 2023, after the time for any opposition was due.[1] Plaintiff asserts that Defendant did not meet and confer with Plaintiff about this motion, and Plaintiff avers that she did not willfully disobey any Court orders.

In reply, Defendant asserts that there is no meet and confer requirement for filing a motion for evidentiary or issue sanctions, but Defendant contends that Defendant still attempted to do so repeatedly. Further, Defendant argues that a willful violation is not required for issue or evidentiary sanctions, but Defendant asserts that Plaintiff’s continuing failure to abide with the Court’s order in clearly intentional discovery abuse. Defendant asserts that Plaintiff provides no proof to substantiate the arguments made in the opposition concerning Plaintiff’s counsel’s alleged travels to Nigeria.

Code of Civil Procedure § 2023.030 gives the court the discretion to impose sanctions against anyone engaging in a misuse of the discovery process. “The court may impose an issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.” (CCP § 2023.030(b).) Further, “The court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.” (Id. § 2023.030(c).)

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.) Further, “[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.)

Here, to the extent that Plaintiff argues that Defendant failed to meet and confer prior to bringing this motion for issue and evidentiary sanctions, CCP §§ 2023.030, which authorizes the Court to impose issue and evidentiary sanctions, does not contain the mandatory meet-and-confer provision found in other discovery statutes relating to motions for further responses like §§ 2030.300(b), §2031.310(b)(2) and §2033.290(b) or motions for protective orders. Thus, although the parties are encouraged to meet and confer prior to filing any motion, Defendant was not required to do so prior to filing this motion.

Nevertheless, Defendant asserts that defense counsel attempted to meet and confer with Plaintiff’s counsel after Defendant received Plaintiff’s court-ordered supplemental responses on November 14, 2022, but Plaintiff’s counsel did not respond. Plaintiff provides that the reason Plaintiff’s counsel did not respond was because Plaintiff’s counsel left to travel to Nigeria to visit his family on or about November 15, 2022, and that while Plaintiff’s counsel took his laptop to work on matters, his laptop malfunctioned during his trip. Plaintiff’s counsel’s employee submits a declaration stating that Plaintiff’s counsel informed him on December 8, 2022, that Plaintiff’s counsel was having problems with his laptop. Plaintiff’s counsel attests that he did not return to his office until January 2, 2023, at which point Plaintiff’s counsel states he had over a thousand emails to go through, and that he did not become aware of this motion until January 9, 2023. Plaintiff’s counsel further asserts that defense counsel was aware that Plaintiff’s counsel was traveling when the motion was filed. Moreover, regarding the discovery requests, Plaintiff states that she has made several attempts to obtain relevant records, including the requested records from her former attorney, but Plaintiff claims she requires more time to get all the records required to comply with the Court’s order.

Defendant seeks the following issue or evidentiary sanctions: “an issue sanction determining for purposes of trial and dispositive motion that Plaintiff’s alleged damages (physical and emotional injuries, medical treatment and work disabilities claimed in this action to have occurred on December 17, 2019 in an elevator) were caused and are the result of her prior, serious car accident on October 18, 2018; and/or an evidentiary sanction that Plaintiff be prohibited from introducing evidence or testimony at trial or motion for judgment claiming her damages (alleged physical and emotional injuries, medical treatment or work disabilities) stem from causes other than her car accident occurring in October, 2018 for which she is refusing to produce Court-ordered discovery.” (Mot. at p. 2:15-22.) The proposed sanctions would preclude Plaintiff from claiming she suffered any damages in connection with the instant incident. This would essentially operate as terminating sanctions, as Plaintiff would be precluded from proving a required element- damages- of Plaintiff’s claims against Defendant.

Because lesser sanctions have not been shown to be ineffective, the Court finds the imposition of the proposed issue and evidentiary sanctions unduly harsh at this time. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793 [A terminating sanction is a "drastic measure which should be employed with caution."]; Dept. of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 191 [“terminating sanctions are to be used sparingly because of the drastic effect of their application.”], overturned on other grounds in Presbyterian Camp & Conference Centers, Inc. v. Superior Court (2021) 12 Cal.5th 493, 516 n. 17.) “[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].)

In the alternative, Defendant requests that Plaintiff again be ordered to provide full responses to special interrogatories, set two, Nos. 27, 28, and 29, and to requests for production of documents, set three, Nos. 24 and 30. Plaintiff, in opposition, does not deny failing to provide complete responses to the subject discovery. Rather, Plaintiff contends that additional time is needed to obtain information responsive to the discovery requests. Therefore, Plaintiff will be ordered to provide complete, Code-compliant responses to Defendant for the subject discovery within twenty (20) days.

More specifically, Defendant’s motion is granted in part. Plaintiff is ordered to serve further responses to special interrogatories, set two, Nos. 27, 28, and 29, and to requests for production of documents, set three, Nos. 24 and 30, on Defendant within twenty (20) days.

Defendant further requests sanctions of $2,060 against Plaintiff and Plaintiff’s counsel for bringing this motion. Here, it appears that Plaintiff made some effort to obtain the requested documents, and thus, sanctions against her are not warranted. As to Plaintiff’s counsel, as Defendant points out in its reply brief, there are a number of issues with the timeline of events that he provides concerning the discovery responses, meet and confer efforts, motion, and his trip. It is not clear when exactly he left the country, when his laptop began to have issues, or why he did not take other steps to attempt to provide compliant discovery responses. While it is understandable that an out of country trip might interfere with one’s ability to work, and professional courtesies should be afforded between counsel, an out of country trip does not provide a blanket excuse to ignore one’s obligations.

However, Defendant’s motion and notice of motion provide that Defendant is seeking sanctions under CCP §§ 2023.010, 2023.030, 2023.040, 2030.300 and 2031.320. CCP § 2031.300 applies when a party fails to provide any response to RPDs. (CCP § 2031.300(a) [“If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the following rules shall apply …”].) CCP § 2031.320 applies when a party fails to comply with their statement of compliance in response to RPDs (see e.g., CCP § 2031.220(a)(1)). (Id. § 2031.320(a)(1) [“If a party filing a response to a demand for inspection … thereafter fails to permit the inspection … in accordance with that party's statement of compliance, the demanding party may move for an order compelling compliance.”].) In connection with the instant motion, Defendant is not seeking to compel a response after Plaintiff failed to provide any response, nor is Defendant seeking to compel Plaintiff’s compliance with a statement of compliance. Rather, Plaintiff is seeking monetary sanctions for Plaintiff’s failure to comply with an order compelling a further response, but Defendant’s request for monetary sanctions is not based on any such authority. (See e.g., Id. § 2031.310(i).) As to CCP §§ 2023.010, 2023.030, and 2023.040, these sections not independently authorize the Court to impose monetary sanctions. (City of Los Angeles v. PricewaterhouseCoopers, LLC (2022) 84 Cal.App.5th 466, 504 [“award of monetary sanctions … based solely on [CCP §§] 2023.010 and 2023.030 without regard to any other provision of the Discovery Act, constituted an abuse of discretion because it was outside the bounds of the court's statutory authority.”].) Defendant does not otherwise identify any other sections Defendant is seeking sanctions under. Therefore, Defendant’s request for monetary sanctions is denied.

Hon. Audra Mori

Judge of the Superior Court

[1] Given the severity of the sanctions requested by Defendant, and in light of Plaintiff’s counsel’s representations that he was out of the country and unaware of the instant motion until January 2023, the Court hearing was continued to February 8, 2023, to allow Defendant to file a reply.