Judge Barbara M. Scheper, Case Number: 20STCV37618, Date: 2024-12-23 Tentative Ruling

Judge: Barbara M. Scheper, Case: 20STCV37618, Date: 2024-12-23 Tentative Ruling

Case Number: 20STCV37618 Hearing Date: December 23, 2024 Dept: 30

Dept. 30

Calendar No.

Nat-Pharm Inc. vs. Silverado Senior Living, Inc., et. al., Case No. 20STCV37618

Tentative Ruling re: Plaintiff’s Motion for Terminating Sanctions

Nat-Pharm Inc. (Plaintiff) moves for an order of terminating sanctions against Subtenant 514 N. Prospect Avenue, LLC dba Silverado Beach Cities Memory Care Community (Defendant), or in the alternative for monetary sanctions. The motion for terminating sanctions is granted.

Code of Civil Procedure section 2023.030 gives the court 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 (Mileikowsky).) 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.”].)

For discovery abuse, “[t]he penalty 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.” (McArthur v. Bockman (1989) 208 Cal.App.3d 1076, 1080.) Discovery sanctions are meant to “protect the interests of the party entitled to but denied discovery,” and should not operate to “put the prevailing party in a better position than he would have had if he had obtained the discovery sought and it had been completely favorable to his cause.” (Siry Investment, LP. v. Farkhondehpour (2020) 45 Cal.App.5th 1098, 1118 (Siry).)

On August 4, 2022, Plaintiff served special interrogatories, set two (Interrogatories), which requested that Defendant identify individuals who received their services within a certain timeframe. (Bhakta Decl. ¶ 4.) Defendant responded with only objections. (Id. ¶ 5.) Plaintiff filed a motion to compel further responses on November 23, 2023, which the Court granted on January 10, 2024 and imposed monetary sanctions. (Id. ¶¶ 6–7.) The Court ordered Defendant to respond by January 20, 2024. (Id. ¶ 8.) Defendant failed to meet the deadline. (Ibid.) During subsequent meet and confer discussions over the course of 2024, Defendant expressed a desire for a protective order. (Ibid.) On October 18, 2024, Plaintiff’s counsel provided a protective order to allow Defendant to produce the personal information requested. (Emdee Decl. ¶ 4.) That same day, Defendant served responses to various sets of discovery but neglected to respond to the Interrogatories. (Id. ¶ 5.) During a meet and confer call on November 20, 2024, Defendant realized that they had not responded and served the responses to the Interrogatories on November 22. (Id. ¶ 10.) Defendant has expressed willingness to continue the trial to avoid any potential prejudice. (Id. ¶ 12.)

Plaintiff argues that terminating sanctions are warranted based on Defendant’s failure to comply with the Court order from January 10, 2024. Compliance with a Court order after terminating sanctions have been threatened does not prevent a trial court from imposing the ultimate sanction. In Mileikowsky, the Court found an imposition of terminating sanctions appropriate despite the submission of responses after the motion’s filing. (Mileikowsky, supra, 128 Cal.App.4th at p. 280.) However, sanctions are not meant to “put the prevailing party in a better position than he would have had it he had obtained the discovery sought.” (Siry, supra, 45 Cal.App.5th at p. 1117.)

Proportionality is critical, and to ensure it, courts are to take an incremental approach, attempting less severe sanctions until the record shows them to be ineffective. (Siry, supra, 45 Cal.App.5th at p. 1117.) Courts must also consider the totality of the circumstances, such as: (1) whether there is a history of discovery abuse by the party; (2) whether the noncompliance was willful; (3) whether the noncompliance persisted despite warnings from the Court that greater sanctions would follow; (4) whether it encompassed all or only some issues in the case; and (5) the extent of the detriment to the propounding party. (Id. at p. 1118.)

Here, the Court previously imposed monetary sanctions on Defendant when it granted Plaintiff’s motion to compel further responses in January. In addition, Plaintiff was forced to file two additional discovery motions in order to obtain responses to requests for production of documents and interrogatories. Only after the motions were filed did Defendant respond to the discovery. Defendant was sanction again in connection with these two motions. Under the incremental approach, terminating sanctions would be justified given Defendant’s noncompliance with the Court’s January order for nine months. Here, the Court finds that the five factors outlined in Syri are satisfied and warrant terminating sanctions.

First, the Court does find a history of discovery abuse by Defendant. Plaintiff initially propounded discovery in August 2022. (Bhakta Decl. ¶ 4.) And Defendant failed to provide responses to many of Plaintiff’s requests until October 2024, even after the Court granted Plaintiff’s motion to compel further responses in January. (Emdee Decl. ¶

4.) Despite Defendant’s continued communications with Plaintiff throughout this period, such a delay and contravention of a court order constitutes discovery abuse. Plaintiff had to bring two additional motions to compel which also resulted in sanctions against Defendant. Thus, the Court finds that this first factor weighs in favor of terminating sanctions.

Second, the Court finds that Defendant’s noncompliance with the Court’s January 2024 was willful. Prior to ruling on the discovery motion, two protective orders had been signed. The issue of confidentiality was addressed at the hearing on the motion and the Court specifically ruled that the responses should be designated confidential. Yet apparently Defendant persisted in demanding yet another protective order. During the meet and confer process, Defendant expressed concern for the personal information of its clients and repeatedly requested a protective order. (Ibid.) Eventually Plaintiff agreed to the protective order, but Defendant still did not respond to the Interrogatories until November 22, 2024, after Plaintiff filed the instant motion. (Id. ¶ 5.) The Court does not credit Defendant’s claim that there was a misunderstanding or a simple oversight. If Defendant believed that a further protective order was required and Plaintiff refused to enter into one, it should have brought a motion to that effect. It did not do so.

Finally, Defendant’s long delay has certainly prejudiced Plaintiff. The Court ordered the production of this information so Plaintiff could identify other witnesses to Defendant’s alleged misconduct and potentially additional damages. The discovery cut-off is less than a month from now thus Plaintiff will have only approximately 6 weeks to evaluate Defendant’s responses. Additionally, Plaintiff must bring the current action to trial before October 1, 2025, pursuant to Code of Civil Procedure section 583.310. Thus, Defendant’s delay in producing discovery has heavily prejudiced Plaintiff by putting them at risk of having their action dismissed. Thus, this factor also weighs heavily in Plaintiff’s favor.

After considering the totality of the circumstances, the Court finds that terminating sanctions are warranted in particular because of the willful nature of Defendant’s violation of the Court’s order and the severe prejudice to Plaintiff.