Judge: Barbara M. Scheper, Case: 20STCV35783, Date: 2023-12-05 Tentative Ruling

Case Number: 20STCV35783    Hearing Date: December 5, 2023    Dept: 30

Dept. 30

Calendar No.

Spacecraft Construction LLC vs. L.A. Puglia LLC, et. al., Case No. 20STCV35783

Tentative Ruling re:  Plaintiff’s Motion for Terminating Sanctions

Plaintiff/Cross-Defendant Spacecraft Construction LLC (Plaintiff) moves for terminating sanctions against Defendants Valentina Bianco, Boas Err LLC, Farbach LLC, Property Management Associates, Inc., Patrick Lacey, Jason LaPoint, Altrove LLC, and L.A. Puglia LLC (collectively, Defendants) on Plaintiff’s Complaint, and against Cross-Complainants Altrove LLC and L.A. Puglia LLC (collectively, Cross-Complainants) on their Cross-Complaint. The unopposed motion is granted.

            Code of Civil Procedure section 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 by entering default judgment. (Code Civ. Proc., § 2023.030, subd. (d).) 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 (Deyo).) 

            A terminating sanction is a “drastic measure which should be employed with caution.” (Deyo, supra, 84 Cal.App.3d at p. 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, supra, 84 Cal.App.3d at 793.) “The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.”

(Doppes v. Bentley Motors, Inc. (2009) 174 Cal. App. 4th 967, 992.)

            “A trial court has broad discretion to impose discovery sanctions, but two facts are generally prerequisite to the imposition of nonmonetary sanctions….: (1) absent unusual circumstances, there must be a failure to comply with a court order, and (2) the failure must be willful.” (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327; But see Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1291 [“willfulness is no longer a requirement for the imposition of discovery sanctions.”].)

On May 25, 2023, the Court entered a Consolidated Order granting Plaintiff’s 20 unopposed motions to compel responses against Defendants, based on Defendants’ failure to provide verified responses to Plaintiff’s Form Interrogatories, Special Interrogatories, and Requests for Production. The Court ordered Defendants to produce responses within 7 days. The Court also directed Defendants and their counsel to pay monetary sanctions to Plaintiff’s counsel.

On September 15, 2023, the Court entered a second Consolidated Order granting Plaintiff’s 4 unopposed motions to compel deposition against Defendants Valentina Bianco, Boas Err LLC, Farbach LLC, and Property Management Associates, Inc., who had failed to appear for their noticed depositions. The Court ordered those defendants to appear for deposition within 30 days and pay monetary sanctions to Plaintiff’s counsel.

Plaintiff noticed the four defendants’ depositions for October 3 and 4, 2023. (Borsuk Decl. ¶¶ 12-13, Ex. 4.) However, on September 29, Defendants’ counsel told Plaintiff’s counsel that his clients would not appear because he had a Covid infection, and requested that the depositions be moved past the 30-day window ordered by the Court. (Borsuk Decl. ¶ 14, Ex. 5.)

Plaintiff’s counsel states that Defendants have still failed to produce discovery responses as ordered by items 8 through 20 of the Consolidated Order. (Borsuk Decl. ¶ 7.) Additionally, Defendants have not paid the full amount of monetary sanctions under the first Consolidated Order, and have paid none of the monetary sanctions due under the second Consolidated Order. (Borsuk Decl. ¶ 8.)

            The motion is unopposed. The Court finds that terminating sanctions are warranted based on Defendants’ willful failure to comply with the Court’s discovery orders.