Judge Cherol J. Nellon, Case 22STCV02194 2023-04-07 Tentative Ruling

On January 19, 2022, Plaintiff Jilder Bravo (“Plaintiff”) filed this action against Defendants Homero Fernandez-Romero (“Romero”) and Marisol Torres (“Torres”) for motor vehicle negligence and general negligence.

On June 21, 2022, Plaintiff filed the FAC, removing the cause of action for general negligence.

On August 8, 2022, Torres was dismissed, without prejudice, pursuant to Plaintiff’s request. On August 24, 2022, Romero filed an answer.

On March 13, 2023, Romero filed a Motion for Sanctions to be heard on April 7, 2023. On March 24, 2023, Plaintiff filed an objection. On March 30, 2023, Romero filed a reply.

Trial is currently set for July 19, 2023

Romero requests the court issue terminating, monetary and evidentiary sanctions. In addition, or in the alternative, Romero requests the Court order Plaintiff to comply with the November 30, 2022, Court order and impose evidentiary sanctions.

Plaintiff requests the Court deny the motion or substantially reduce the amount awarded. Plaintiff conditionally requests sanctions totaling $1,400.00.

Under CCP § 2023.030, “[t]he 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.” The Court may also impose evidence sanctions, “by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.” Either may be imposed against a party engaging in misuse of the discovery process.

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).) 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].)

Misuses of the discovery process include but are not limited to persisting in attempting to obtain information outside the scope of discovery, using a non-compliant discovery method, employing a discovery method to harass or embarrass, failing to respond to discovery, making meritless objections to discovery, giving evasive responses to discovery, disobeying a court order, and unsuccessfully making or opposing a motion to compel or limit discovery. CCP § 2023.010.

The Court may also impose monetary sanctions against one engaging in the misuse of the discovery process. (CCP § 2023.030(a).)

Terminating/Issue/Evidentiary Sanctions

On November 30, 2022, the Court ordered Plaintiff to provide responses, without objection, to Romero’s discovery, within 30 days of the hearing on the motion and pay sanctions. Romero claims that Plaintiff has failed to provide objection free responses and to pay sanctions.

First, the Court notes that it will not take into account a failure to pay sanctions in determining additional sanctions, as it is improper.

Plaintiff provided copies of discovery responses, dated January 29, 2023, that are objection free, but do not address every single request or interrogatory. As pointed out in Romero’s reply, there are still approximately 10 form interrogatories, 10 special interrogatories, and 13 requests for production that lack objection free responses. Additionally, Plaintiff failed to provide proper verification, as the verification forms note that these are responses to a different set of discovery.

The Court does not find grounds for terminating sanctions here; although Plaintiff failed to fully comply with the Court order, it is not clear that no less severe sanctions would result in compliance with discovery obligations. The Court orders Plaintiff to fully comply with the November 30, 2022, Court order and to provide objection-free, code compliant responses, within 10 days of the hearing on this motion, with proper verification. Plaintiff should serve responses to every single discovery request in order to ensure none go unanswered.

Should Plaintiff fail to abide by this Court order, the Court will be open to imposing evidentiary, issue and potentially terminating sanctions on Plaintiff.

The Court finds there are grounds for monetary sanctions as Plaintiff willfully failed to comply with both discovery obligations and a Court order. Romero requests sanctions totaling $4,525.00, based on 19 hours of attorney’s work at a rate of $235.00 per hour and 1 $60.00 filling fee. 12 hours were spent meeting and conferring regarding the previous Court order and drafting this motion, 3 hours were spent preparing a reply and 2 hours were spent attending the hearing on the motion. The Court awards $1,705.00 in sanctions, based on 7 hours of attorney’s work and 1 $60.00 filling fee.

Defendant Homero Fernandez-Romero's Motion for Sanctions is GRANTED, as to monetary sanctions. The Court orders Plaintiff and Plaintiff’s counsel to pay Romero $1,705.00 in sanctions within 30 days of the hearing on the motion. Plaintiff is also ordered to produce objection free, code-complaint discovery responses, with proper verifications within 10 days of the hearing on the motion.